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In Turner, a case with the same posture as this one, the court held that the consular officer had also met this duty by refusing the visa based on INA § 221(g) and placing the application in administrative processing.
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Civil Action RDB-24-318
12-03-2024
MAXINE TURNER, et al. Plaintiffs, v. ANTONY J. BLINKEN, et al., Defendants.
MEMORANDUM OPINION
Richard D. Bennett, Senior United States District Judge
Plaintiffs Maxine Turner (“Turner”) and Victor Jean Marie Quentin (“Quentin”) (collectively, “Plaintiffs”), bring this unreasonable delay claim against Defendants Antony J. Blinken, in his official capacity as U.S. Secretary of State; Rena Bitter, in her official capacity as Assistant Secretary of the Bureau of Consular Affairs; David R. McCawley, in his official capacity as Deputy Chief of Mission in Paris, France; and John Doe, in his official capacity as Consular Officer at the U.S. Consulate in Paris, France, (collectively “Defendants”), regarding Plaintiffs' pending K-1 fiance(e) visa (“K-1 visa”) application. (ECF No. 1 at 2.) Turner is a U.S. citizen whose fiance, Quentin, is a French national residing in France. On June 26, 2023, Quentin filed an application for entry into the United States under the K-1 visa process. (Id. ¶ 3.) On August 30, 2023, Quentin attended his visa interview at the U.S. Embassy in Paris, and, at the conclusion of the interview, learned that his case had been placed in administrative processing under § 221(g) of the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (“INA”). (Id. ¶ 22.) Administrative processing under INA § 221(g) constitutes refusal of a visa application. (ECF No. 12 at 13); 8 C.F.R. § 41.121(a). On January 31, 2024, Turner and Quentin filed the instant action to compel adjudication of Quentin's visa application under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”) (Count I). (ECF No. 1 at 7.)
Pending before this Court is Defendants' Motion to Dismiss (“Defendants' Motion”) (ECF No. 12). Plaintiffs have responded in opposition (ECF No. 13) and Defendants have replied (ECF No. 14). The parties' submissions have been reviewed and no hearing is necessary. Loc. R. 105.6 (D. Md. 2023). For the reasons explained below, Defendants' Motion is GRANTED and Plaintiffs' Complaint is DISMISSED.
BACKGROUND
In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). Except where indicated otherwise, the following facts are derived from Plaintiffs' Complaint (ECF No. 1) and accepted as true for the purpose of Defendants' Motion to Dismiss (ECF No. 12).
I. K-1 Visa Process
Before reaching Plaintiffs' allegations, it is helpful to review the process by which Quentin seeks entry into the United States. Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., a foreign national generally may not be admitted into the United States without a visa. (ECF No. 12 at 12.) The K-1 visa allows a foreign-citizen fiance(e) of a U.S. citizen to enter the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. (Id.); see also 8 U.S.C. § 1101(a)(15)(K)(i). Once the foreign citizen has received his K-1 visa, arrived in the U.S., and married his fiance(e), he may apply for adjustment of status to permanent resident with the Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”). (ECF No. 12 at 12.)
The process to obtain a K-1 visa proceeds in two stages: (1) the U.S. citizen sponsor submits his or her application, and (2) the sponsor's foreign-citizen fiance(e) submits a separate application and attends a visa interview in their country of residence. (Id.) First, the U.S. citizen sponsor must file a Form I-129F Petition for Alien Fiance(e) (“Form I-129F”), with USCIS. (Id.) If USCIS approves the Form I-129F, it remains valid for four months. (Id.); see also 8 C.F.R. § 214.2(k)(5). After approving a Form I-129F, USCIS sends it to the National Visa Center (“NVC”), which assigns a case number and forwards it to the U.S. Embassy or Consulate in the country where the U.S. citizen sponsor's fiance(e) is located. (Id.)
Next, the foreign fiance(e) must submit various forms-including a Form DS-160, Online Nonimmigrant Visa Application (“Form DS-160”)-and bring required documents to an interview at the appropriate U.S. Embassy or Consulate. (Id.); 22 C.F.R. § 41.103. The consular officer alone determines whether to issue the visa, refuse the visa, or, pursuant to an outstanding order under INA § 243(d), discontinue granting the visa. (ECF No. 12 at 12); 8 U.S.C. § 1201(a); 22 C.F.R. § 41.121. Under INA § 221(g), a consular officer may refuse to issue a visa based on the applicant's failure to meet his burden to demonstrate his eligibility for the requested visa. (ECF No. 12 at 13); 8 U.S.C. § 1201(g). Section 221(g) also permits a consular officer to provide the applicant additional administrative process to establish his eligibility such that the consular officer reconsiders the initial visa refusal. (ECF No. 12 at 13); 8 U.S.C. § 1361; 8 U.S.C. § 1201(g).
II. Plaintiffs' Allegations
It is by this process that Plaintiffs, who are currently engaged, sought to obtain a K-1 visa that would enable Quentin to legally enter the United States to marry Turner, who is a U.S. citizen living in Maryland. (ECF No. 1 ¶¶ 1, 10, 16.) On March 23, 2023, USCIS approved Turner's Form I-129F, and, on June 20, 2023, NVC notified Quentin that it had received the approved Form I-129F from USCIS. (Id. ¶ 19.) Just a week later, on June 26, 2023, Quentin submitted his Form DS-160. (Id. at ¶ 3.) On August 30, 2023, Quentin completed his scheduled interview at the U.S. Embassy in Paris, France. (Id. ¶ 21.) Immediately following his interview, Quentin received a Form 221(g) informing him that his case had been placed in administrative processing. (Id. ¶ 22.) In accordance with the instructions in the Form 221(g), Quentin mailed his passport to the Embassy via courier service on August 30, 2023. (Id.) Later that same day, he received an email asking him to provide additional information by submitting a Form DS-5535, which he timely completed and returned. (Id.) Plaintiffs allege that since August 30, 2023, Quentin's visa application has remained in administrative processing without updates despite Plaintiffs' multiple requests for further adjudication. (Id. ¶ 23; ECF No. 13 at 12; No. 13-1 at 1; ECF No. 13-2.) Plaintiffs acknowledge that administrative processing under § 221(g) constitutes a refusal, but argue that such refusal is not a final adjudication of a non-immigrant visa. (ECF No. 13 at 12.)
Plaintiffs allege that the processing delay of six months at the time of filing-and now fifteen months-violates the APA and has caused them significant financial and emotional hardships. (ECF No. 1 ¶¶ 25-26, 30-34.) Specifically, Plaintiffs allege that Congress has mandated that the State Department must adjudicate K-1 fiance(e) visa applications within 30 days of receipt of all necessary documents from the applicant and USCIS. (Id. ¶ 34 (citing 8 U.S.C. § 1201 note 6.) Plaintiffs allege that the pending application has prevented their marriage because Quentin's visa will be denied if they marry before it is issued. (Id. ¶¶ 6, 27.) According to Plaintiffs, the U.S. Embassy in Paris has provided no explanation for the months-long processing delay. (Id. ¶¶ 36-38.) Finally, Plaintiffs allege that the unreasonable delay violates Turner's due process rights regarding her familial choices. (Id. ¶ 40.)
STANDARD OF REVIEW
I. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). A challenge to jurisdiction under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). In determining jurisdiction, the district court must “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768-769 (4th Cir. 1991). The plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction. Demetres v. E. W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015).
ANALYSIS
In their Motion, Defendants argue that Plaintiffs' claim must be dismissed under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, Defendants argue that, under Rule 12(b)(1), the Court lacks subject matter jurisdiction because (1) Plaintiffs cannot establish that Defendants had a clear, non-discretionary duty to act, and (2) the case is moot because a consular officer has already adjudicated Quentin's application. (ECF No. 13 at 7- 15.) Alternatively, Defendants argue under Rule 12(b)(6) that the case must be dismissed because (1) the consular non-reviewability doctrine precludes adjudication by this Court, and (2) the alleged delay is not unreasonable. (Id. at 10-20.) Courts must have jurisdiction to reach a plaintiff's substantive claims. See Elyazidi v. SunTrust Bank, 780 F.3d 227, 232 (4th Cir. 2015) (deeming jurisdiction a threshold issue that courts must determine “before ‘addressing the merits'” of a claim (quoting Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999))). Accordingly, the Court addresses subject matter jurisdiction first.
I. Subject Matter Jurisdiction
Defendants argue that this Court lacks subject matter jurisdiction for two reasons. First, Defendants assert that the APA does not authorize review of Defendants' delay in processing a K-1 visa application. (Id. at 17.) Specifically, Defendants contend that the APA only provides jurisdiction for a claim of unreasonable delay where the plaintiff alleges that the agency failed to observe a clear, non-discretionary duty to act and bars judicial review where, as here, an action falls within an agency's discretion. (Id.) Second, Defendants argue that, even if Plaintiffs could show the existence of a clear, non-discretionary duty, this case is moot because Quentin's application has already been adjudicated. (Id. at 19.) Defendants assert that a consular officer's decision to refuse a visa application under § 221(g) constitutes a final adjudication. (Id. at 19-20.) Accordingly, Defendants contend that Plaintiffs lack a legally cognizable interest in the outcome of this litigation and there is no longer an actual case or controversy before this Court. (Id.)
In response, Plaintiffs argue that Defendants have a clear, non-discretionary duty to adjudicate visa applications within a reasonable time pursuant to 22 C.F.R. §§ 41.121(a) and 41.102(A) and the APA §§ 555(b). (ECF No. 13 at 8, 9, 10.) Moreover, Plaintiffs contend that their claim is not moot because disposition of a visa application under § 221(g) does not constitute final adjudication even though such disposition indicates that the application has been “refused.” (Id. at 9.) Rather, Plaintiffs argue that Defendants have admitted that all visa applications are deemed “refused” as long as administrative processing is incomplete. (Id.) Therefore, applications that remain in administrative processing have not been fully and finally adjudicated. (Id.)
As the Supreme Court has explained, a district court has subject matter jurisdiction to compel agency action under § 706(1) of the APA only if the agency has a non-discretionary duty to act. Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004). That is, “‘[w]here an agency ‘fails to take a discrete action that it is required to take,' the APA creates a private cause of action for a party aggrieved by that agency's unreasonable delay,'” but “where an agency is not required to do something, [courts] cannot compel the agency to act-let alone to act faster.” Gonzalez v. Cuccinelli, 985 F.3d 357, 366 (4th Cir. 2021) (emphasis in original) (quoting Fed. Energy Regul. Comm'n v. Powhatan Energy Fund, LLC, 949 F.3d 891, 903 (4th Cir. 2020)); see also Norton, 542 U.S. at 63 n.1. Federal courts, including those in the Fourth Circuit, are split as to whether adjudication of a visa application is a discrete, non-discretionary duty subject to judicial review under APA § 706(1). See, e.g., Jahangiri v. Blinken, Civ. No. DKC-23-2722, 2024 WL 1656269, at * 7 (D. Md. Apr. 17, 2024) (reaching APA unreasonable delay claim regarding visa application without discussing non-discretionary duty); Jaraba v. Blinken, 568 F.Supp.3d 720, 729 (W.D. Tex. 2021) (collecting cases holding courts have a non-discretionary duty to adjudicate visa applications in a timely manner). But see Ishaq v. Schofer, Civ. No. 8:24-cv-207-TJS, 2024 WL 3729107, at * 5 (D. Md. Aug. 8, 2024) (holding court lacked jurisdiction because there is no non-discretionary duty to adjudicate a visa application); Mueller v. Blinken, 682 F.Supp.3d 528, 536-37 (E.D. Va. 2023) (holding court lacked jurisdiction because there is no non-discretionary duty to adjudicate a visa application).
Because the plaintiff bears the burden to prove subject matter jurisdiction, the existence of such jurisdiction in cases alleging unreasonable delay in adjudicating a visa application turns on the plaintiff's circumstances-that is, the type of visa he seeks and his position within the adjudication process. Here, Quentin seeks a K-1 visa and has completed all steps in the application process, including attending his interview with a consular officer, providing requested supplemental information, and surrendering his passport to the U.S. Embassy in Paris. To support jurisdiction over his unreasonable delay claim, he cites 5 U.S.C. § 555(b) and two federal regulations, 22 C.F.R. §§ 41.102(a) and 41.103(a)(1).
As Judge Sullivan of this Court has recently explained, 5 U.S.C. § 555(b) cannot support jurisdiction under the APA § 706(1). Ishaq, Civ. No. 8:24-cv-207-TJS, 2024 WL 3729107, at *5. Under 5 U.S.C. § 555(b), “[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” The U.S. Court of Appeals for the Fourth Circuit has determined that such broad language is not sufficient to create the discrete, non-discretionary duty required to enable judicial review of agency inaction under APA § 706(1). Gonzalez, 985 F.3d at 365-66 (holding court lacked subject matter jurisdiction despite § 555(b)'s instruction that agencies act “within a reasonable time”); see also Ali v. U.S. Dep't of State, 676 F.Supp.3d 460, 470 (E.D. N.C. 2023) (explaining that § 555(b) does not create “specific non-discretionary duties”). Moreover, Plaintiffs concede in their opposition filing that § 555(b) does not create any specific, non-discretionary duty for an agency to act. (ECF No. 13 at 9.)
Under 22 C.F.R. § 41.102(a), however, immigration officials have at least some non-discretionary duties regarding nonimmigrant visa applications. Specifically, under 22 C.F.R. § 41.102(a), at a noncitizen's visa interview, the consular officer “shall determine on the basis of the applicant's representations, the visa application and other relevant documentation: (1) [t]he proper nonimmigrant classification, if any, of the [noncitizen]; and (2) [t]he [noncitizen's] eligibility to receive a visa.” As the Fourth Circuit has noted, use of “shall” in an immigration statute suggests a mandatory duty to act. See Gonzalez, 985 F.3d at 371 (“[T]he term ‘pending, bona fide application' does not transform the discretionary ‘may' into a mandatory ‘shall.'”) (emphasis added)). Thus, 22 C.F.R. § 41.102(a) imposes on consular officers a non-discretionary duty to determine an applicant's proper nonimmigrant classification and eligibility for a visa.
The critical question here, therefore, is whether refusal under § 221(g) constitutes the required determination of an applicant's eligibility to receive a visa. Although neither the Fourth Circuit nor the Supreme Court of the United States has squarely addressed this issue, many courts in the Fourth Circuit have held that refusal of a visa under § 221(g) fulfills immigration officials' discrete, non-discretionary duty regarding visa applications. See Ramizi v. Blinken, 2024 WL 387041, at *10 (E.D. N.C. Aug. 14, 2024) (holding refusal under § 221(g) satisfies agency's non-discretionary duty); Aslam v. Heller, 2024 WL 3535389, at *6 (M.D. N.C. July 23, 2024) (holding refusal under § 221(g) satisfies agency's non-discretionary duty); Ameen v. U.S. Dep't of State, 2024 WL 3416264, at *3, *3 n.7 (E.D. Va. July 15, 2024) (noting refusal of plaintiff's visa application under § 221(g) would have resulted in determination that judicial review of plaintiff's claim was barred). Courts outside the Fourth Circuit have reached the same conclusion. See, e.g., Yaghoubnezhad v. Stufft, 2024 WL 2077551, at *8, *10 (D.D.C. May 9, 2024) (“Without any statute or regulation pointing to additional discrete action [beyond refusal under § 221(g)] that State is required to take, Plaintiffs cannot compel State to take any further action on their applications under § 706(1).”).
Here, Plaintiffs have cited no authority or regulations imposing an additional duty on Defendants to adjudicate a K-1 visa that has been refused, or placed into administrative processing, under § 221(g). The consular officer who interviewed Quentin already determined that he was ineligible for a K-1 visa, which fulfills Defendants' non-discretionary duty pursuant to 22 C.F.R. § 41.102(a). Absent further authority, Plaintiffs cannot meet their burden to prove subject matter jurisdiction because they cannot show that Defendants have failed to fulfill a discrete, non-discretionary duty to act after their refusal of Quentin's visa pursuant to § 221(g). Accordingly, this Court lacks subject matter jurisdiction to review Plaintiffs' APA claim. Defendants' Motion to Dismiss (ECF No. 12) is GRANTED pursuant to Rule 12(b)(1) because this Court lacks subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 12) is GRANTED. Specifically, Defendants' Motion (ECF No. 12) is GRANTED pursuant to Federal Rule of Civil Procedure 12(b)(1) because this Court lacks subject matter jurisdiction over Plaintiffs' claim of unreasonable delay under APA § 706(1). Plaintiffs' claim is DISMISSED.
A separate Order follows.