Opinion
Civil Action No. 1:21-cv-02470 (CJN)
2022-12-14
Abul Ala SIDDIQUI, Plaintiff, v. Anthony J. BLINKEN, et al., Defendants.
Joshua L. Goldstein, Goldstein Immigration Lawyers, Los Angeles, CA, for Plaintiff. Sian Jones, DOJ-USAO, Washington, DC, for Defendants.
Joshua L. Goldstein, Goldstein Immigration Lawyers, Los Angeles, CA, for Plaintiff. Sian Jones, DOJ-USAO, Washington, DC, for Defendants. ORDER CARL J. NICHOLS, United States District Judge
This matter is before the Court on Defendants' Motion to Dismiss, ECF No. 5, and on Plaintiff's Motion for Summary Judgment, ECF No. 8.
For the reasons stated in the accompanying Memorandum Opinion, ECF No. 14, it is
ORDERED that Defendants' Motion, ECF No. 5, is GRANTED; it is further
ORDERED that Plaintiff's Motion, ECF No. 8, is DENIED.
This is a final appealable order. MEMORANDUM OPINION
Plaintiff Abul Ala Siddiqui seeks to compel the government to adjudicate his L-1 visa application and the L-2 beneficiary applications of his wife and children. See generally Pls.' Pet. For Writ of Mandamus ("Pet."), ECF No. 1. Defendants filed a Motion to Dismiss, ECF No. 5, and Siddiqui responded with a Motion for Summary Judgment, ECF No. 8. For the reasons discussed below, the Court grants Defendants' Motion to Dismiss and denies Siddiqui's Motion for Summary Judgment.
Background
The Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101, et seq., regulates the admission of aliens into the United States, including the temporary admission of nonimmigrants for a specific purpose. One kind of nonimmigrant visa is the L-1 visa, which is available to an alien employee of a qualifying organization "seek[ing] to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge," id. § 1101(a)(15)(L), or an "intracompany transferee[ ]," see 8 C.F.R. § 214.2(l)(1). "The spouse and unmarried minor children" of an intracompany transferee are also "entitled to L nonimmigrant classification." Id. § 214.2(l)(7)(ii).
Abul Ala Siddiqui is a citizen of Pakistan and resident of Saudi Arabia. Pet. ¶ 5. Siddiqui's employer filed a petition for an L-1 visa on his behalf, and his wife and children submitted their L-2 visa applications with the U.S. Consulate General in Dhahran, Saudi Arabia. Pl.'s Statement of Material Facts ("Pl.'s Facts") ¶¶ 1-3, ECF No. 8-1. Siddiqui and his family members were interviewed by the U.S. Consulate General in Dhahran in December 2019. Id. ¶ 4. According to the Complaint, the officer at the Consulate told Siddiqui and his family members after their interview that their applications were being placed in "administrative processing." Id. ¶ 5. Siddiqui has inquired into the status of his and his family members' applications several times but has not received "meaningful" responses. Id. ¶ 6; see also Exhibit A to Pl.'s Mot. for Summ. J., ECF No. 8-2. He states that "[i]t is unclear what processes[,] if any, the Consulate is working on." Pl.'s Facts ¶ 7. And he asserts that Defendants' failure to adjudicate these visa applications "has had a profound and negative impact on" his life and the lives of his wife and children. Pet. ¶ 18.
Siddiqui filed a petition for writ of mandamus and complaint for injunctive relief, seeking to compel the adjudication of his and his family members' visa applications under either the Administrative Procedure Act or the Mandamus Act. See generally Pet. He names as defendants the Secretary of State, the Attorney General, the Secretary of the Department of Homeland Security, the Director of the U.S. Citizenship and Immigration Services, the Director of the Federal Bureau of Investigation, the Acting Legal Advisor of the Department of State, the Chargé d'Affaires of the U.S. Embassy in Saudi Arabia, and the Consul General of the U.S. Consulate in Dhahran. His petition claims that the relevant federal agencies are unlawfully withholding or unreasonably delaying action on the visa applications. See id. ¶¶ 19-27. He argues that the delay is "per se unreasonable" because Defendants have not offered a reason for placing the visa applications in administrative processing. See id. ¶ 28. And he argues that the Department of State and Consular Officers have a clear duty to adjudicate the applications under 22 C.F.R. § 42.81(a). See id. ¶¶ 24, 32; see also 22 C.F.R. § 42.81(a) ("When a visa application has been properly completed and executed before a consular officer . . . , the consular officer must issue the visa, refuse the visa . . . , [or] discontinue granting the visa.").
Defendants moved to dismiss. See generally Defs.' Mot. to Dismiss, ECF No. 5. They argue first that the visa applications have been adjudicated already, as "[p]ublic records show that after the interview, the consular officer 'refused' the visa applications in December 2019." Id. at 2 (citing Pet. ¶¶ 12-13 (identifying the application numbers of Siddiqui and his family members)); Consular Elec. Application Ctr., Visa Status Check, https://ceac.state.gov/CEACStatTracker/Status.aspx (using application numbers, showing that the applications have been "Refused.")). They further argue that several of the officials named as defendants in Siddiqui's petition cannot provide the relief requested, see id. at 4; that Siddiqui's claims are barred by the consular non-reviewability doctrine, id. at 6; and that Siddiqui fails to state a claim because on the merits, the delay is not unreasonable under the TRAC factors. Id. at 9-17 (citing Telecomms. Rsch. & Action Ctr. v. Fed. Commc'n Comm'n, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC")).
Siddiqui responded with a Motion for Summary Judgment. See Pl.'s Mot. for Summ. J., ECF. No. 8. Siddiqui argues that he sued the correct defendants, as it "is the practice" of the Departments of Justice, Homeland Security, and State "to share security information with other agencies" and this case raises challenges to the policy and practice of the Federal Bureau of Investigation and Acting Attorney General. Pl.'s Mem. in Opp'n to Defs.' Mot. to Dismiss and in Supp. of Pl.'s Mot. for Summ. J., ECF No. 7, at 11. He also argues that the doctrine of consular non-reviewability does not apply because the applications have not been adjudicated, but instead remain in "administrative processing." Id. 9. And he argues that the agency's delay is unreasonable under the six-factor TRAC analysis. Id. at 12-17.
Legal Standards
"Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (internal quotation omitted). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing the Court's subject-matter jurisdiction. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When evaluating a motion to dismiss 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,' . . . and upon such facts determine[s] jurisdictional questions." Am. Nat'l Ins. Co. v. Fed. Deposit Ins. Co., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Without subject-matter jurisdiction over a claim, the Court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must "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) (internal quotation omitted). "A claim has facial plausibility 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 Court must treat the plaintiff's factual allegations as true and grant him "the benefit of all inferences that can be derived from the facts alleged." L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (internal quotation omitted).
Analysis
I. Standing
Before the Court can proceed to the merits, it must first assure itself that it has subject matter jurisdiction over the claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). So, the Court begins its analysis by addressing the government's jurisdictional arguments under Federal Rule 12(b)(1).
The government argues that Siddiqui lacks standing to bring his APA and Mandamus Act claims against six of the eight defendants. The government argues that Siddiqui lacks standing to bring claims against the Secretary of the Department of Homeland Security and the Director of the U.S. Citizenship and Immigration Services because Siddiqui "makes no substantive allegations about the roles of the Department of Homeland Security [officers] . . . with respect to the underlying visa petition[s]." Mot. to Dismiss at 4. The government also argues that Siddiqui fails to "explain how [the Attorney General or the Director of the FBI] currently play[s], or ha[s] played, any role in adjudicating the visa request." Id.; see also Defs.' Reply, ECF No. 10, at 3. And the government argues that "neither [the Secretary of State nor the Department of State's Legal Advisor] can adjudicate an application for a visa," as the INA "grants consular officers exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations." Mot. to Dismiss at 5 (quoting Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (internal quotations omitted)) (emphasis omitted).
The Court agrees with the thrust of the government's argument, which is that Siddiqui has failed to allege either causation or redressability with respect to the contested defendants. See Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007) ("To demonstrate standing under Article III, a party must show injury in fact that was caused by the conduct of the defendants and that can be redressed by judicial relief." (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))). Siddiqui failed to allege any involvement of the Secretary of the Department of Homeland Security, the Director of the U.S. Citizenship and Immigration Services, the Attorney General, or the Director of the FBI with respect to his and his family's visa applications. Because he has not alleged any facts about their involvement, he has failed to show causation and therefore does not have standing to bring claims against these officials. See id.
Additionally, Siddiqui cannot show redressability as to the Secretary of State or the Department of State's Legal Advisor because neither official has the power to grant him relief. The INA, which "governs visa processing," "confers upon consular officers exclusive authority to review applications for visas, precluding even the Secretary of State from controlling their determinations." Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999) (citing 8 U.S.C. §§ 1104(a), 1201(a)). Because only the consular offices, and not the Department of State, can grant Siddiqui and his family's visa applications, and because Siddiqui does not challenge any policy or regulation of the Department, Siddiqui cannot show that his injury is redressable by the Department of State officials.
The remaining defendants are the officials from the U.S. Embassy in Saudi Arabia and the U.S. Consulate in Dhahran. The Court will now proceed to the merits arguments with respect to these defendants.
II. APA Claim
Siddiqui argues that the government has unreasonably delayed the adjudication of his and his family's applications in violation of the APA. See Pet. at ¶ 19. "The [APA] imposes a general, but nondiscretionary, duty upon an administrative agency to pass upon a matter presented to it 'within a reasonable time,' 5 U.S.C. § 555(b), and authorizes a reviewing court to 'compel agency action unlawfully withheld or unreasonably delayed,' id. § 706(1)." Skalka v. Kelly, 246 F. Supp. 3d 147, 152 (D.D.C. 2017). Where the agency does not have a clear duty to act and Congress has not prescribed a deadline, "the question becomes whether the agency's delay is unreasonable." Id.
"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 omitted). To determine whether a delay in agency action is "unreasonable," this Court considers the six factors enumerated by the D.C. Circuit:
(1) the time agencies take to make decisions must be governed by a "rule of reason;"TRAC, 750 F.2d at 80 (internal citations and quotations omitted). Of these six factors, the first is the most important. See In re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008).
(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."
Siddiqui has not plausibly alleged that the delay is "unreasonabl[e]" under the APA because, taken together, the TRAC factors weigh in the government's favor. See 5 U.S.C. § 706(1). For the purposes of deciding the Motion to Dismiss, the Court presumes that Siddiqui's applications remain in administrative processing and have not been formally "refused." See L. Xia, 865 F.3d at 649.
To begin, the first and second factors weigh in the government's favor. Congress has not provided a timeframe for overseas consular offices to process visa applications, but rather has given agencies "wide discretion in the area of immigration processing." Skalka, 246 F. Supp. 3d at 153-54. Although Siddiqui has been waiting for three years since he and his family were interviewed by the consular office, that amount of time is in line with other decisions that have not found unreasonably delay. See Sarlak v. Pompeo, No. 20-35, 2020 WL 3082018, at *5-6 (D.D.C. June 10, 2020) (collecting cases); see also Yavari v. Pompeo, No. 19-2524, 2019 WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019) ("District courts have generally found that immigration delays in excess of five, six, [or] seven years are unreasonable, while those between three to five years are often not unreasonable."). And even if the 180-day period in 8 U.S.C. § 1571(b) for immigration benefit applications before the Immigration and Naturalization Service applied here—which is doubtful as Siddiqui's application is before an overseas consular office—"[s]everal courts, including the D.C. Circuit, have recognized that a sense of Congress resolution is not law." See Palakuru v. Renaud, 521 F. Supp. 3d 46, 51 (D.D.C. 2021) (internal quotation omitted). And the government has provided an identifiable rationale for the delay—"government resources have been severely stressed due to the pandemic during the period" that Siddiqui's applications have been pending, see Mot. to Dismiss at 13, and "the United States Mission to Saudi Arabia [has] resumed routine nonimmigrant visa services in limited numbers," id. at 3.
The third and fifth factors weigh in Siddiqui's favor—but only slightly. According to Siddiqui's Petition, Defendants' failure to adjudicate these visa applications "has had a profound and negative impact on" his life and the lives of his wife and children. Pet. ¶ 18. The Court accepts this statement as true for the purposes of deciding the Motion to Dismiss. See L. Xia, 865 F.3d at 649. But Siddiqui provides no other factual allegations about the negative impacts of the delay in his Petition or his Statement of Facts. See generally Pet.; Pl.'s Facts. All applicants awaiting adjudication of a visa application experience some level of negative impact. And "[w]hile the Court does not doubt that [Siddiqui] has an interest in prompt adjudication, so too do many others facing similar circumstances," and "[c]atapulting [Siddiqui] to the front of the line directs resources away from the adjudications that the State Department has identified as more urgent." Dastagir v. Blinken, 557 F. Supp. 3d 160, 168 (D.D.C. 2021) (internal quotation and citation omitted) (alteration adopted); see also Mot. to Dismiss at 16.
The fourth factor weighs in the government's favor. An order compelling the government to adjudicate Siddiqui's case "within fifteen (15) calendar days of this order or as soon as reasonably possible" would permit Siddiqui to "jump the line and simply move all others back one space and produce no net gain." Dastagir, 557 F. Supp. 3d at 167 (internal quotation omitted) (alterations adopted). "While the effect of an individual case would be minimal, an 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). "Federal agencies, not the Court, are best positioned to manage the backlog of immigration cases." Dastagir, 557 F. Supp. 3d at 167.
The sixth factor "plays no part in the Court's evaluation." See Kangarloo v. Pompeo, 480 F. Supp. 3d 134, 142 (D.D.C. 2020). "Although the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed, [Siddiqui] here ha[s] not alleged bad faith." Id. (internal quotation and citation omitted).
Evaluating the factors together, the government has not unreasonably delayed the adjudication of Siddiqui and his family's visa applications.
III. Mandamus Claim
Siddiqui also petitions for a writ of mandamus to compel the government to process his and his family's applications. Pet. at ¶¶ 30-35. But the standard for undue delay under the Mandamus Act is identical to the APA standard, see Norton v. S. Utah Wilderness All., 542 U.S. 55, 63-64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), so Siddiqui's Mandamus Act claim fail for the same reasons stated above.
Because Siddiqui's APA and Mandamus Act claims fail on the merits, this Court need not resolve the factual dispute about whether the applications were placed in administrative processing or refused, nor the dispute about the consular non-reviewability doctrine.
Conclusion
For the forgoing reasons, the Court grants Defendants' Motion to Dismiss and denies Plaintiff's Motion for Summary Judgment. An Order will issue contemporaneously with this Opinion.