Borzouei v. Bitter et al, No. 3:2022cv00872 - Document 10 (S.D. Cal. 2022)
Court Description: ORDER Granting 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Michael M. Anello on 12/14/2022. (ave)
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Borzouei v. Bitter et al Doc. 10 Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.81 Page 1 of 18 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 NAVID BORZOUEI, Case No. 22-cv-872-MMA (KSC) Plaintiff, 13 14 v. ORDER GRANTING MOTION TO DISMISS 15 RENA BITTER, et al., [Doc. No. 5] 16 Defendants. 17 18 19 20 On June 15, 2022, Plaintiff Navid Borzouei (“Plaintiff”) initiated this immigration 21 action against Defendants Rena Bitter, Sean Murphy, and Antony Blinken (collectively, 22 “Defendants”). See Doc. No. 1 (“Compl.”). Plaintiff seeks judicial intervention in the 23 processing of his wife’s immigrant visa application. See id. Defendants now move to 24 dismiss both causes of action against them. Doc. No. 5. Plaintiff filed an opposition to 25 Defendants’ motion, to which Defendants replied. See Doc. Nos. 8, 9. The Court found 26 the matter suitable for determination on the papers and without oral argument pursuant to 27 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 7. For 28 the following reasons, the Court GRANTS Defendants’ motion to dismiss. -1- 22-cv-872-MMA (KSC) Dockets.Justia.com Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.82 Page 2 of 18 1 I. BACKGROUND 2 Plaintiff is a lawful permanent resident of the United States. See Compl. ¶ 6. In 3 September 2018, he filed a visa petition, Form I-130, for his wife, Negin Nilforoush, with 4 U.S. Citizenship and Immigration Services (“USCIS”). Compl. ¶ 10. Plaintiff’s 5 intention was to obtain lawful permanent resident status for his wife so she could join 6 him in the United States. Id. “In November 2019, USCIS approved this visa petition.” 7 Id. ¶ 10. Since then, “Plaintiff and his wife have inquired as to the status of this visa 8 application on numerous occasions and received no meaningful responses.” Id. ¶ 12. 9 Plaintiff contends that because Defendants have not “finished processing this visa” he 10 and his wife continue to suffer. Id. ¶ 1. 11 Consequently, Plaintiff brings two causes of action against Defendants. First, 12 pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), Plaintiff asks 13 the Court to compel Defendants to adjudicate the visa. Second, Plaintiff seeks a writ of 14 mandamus compelling adjudication of the visa pursuant to the Mandamus Act, 28 U.S.C. 15 § 1361. Namely, Plaintiff asks for an order mandating that Defendants process the visa 16 application within fifteen (15) calendar days or as soon as reasonably possible. Id. 17 ¶ 31.b. Defendants now move to dismiss both causes of action against them under Rules 18 12(b)(1) and 12(b)(6). 19 20 21 II. LEGAL STANDARDS A. Rule 12(b)(1) “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 22 Co. of Am., 511 U.S, 375, 377 (1994). As such, “[a] federal court is presumed to lack 23 jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, 24 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). 25 Without subject matter jurisdiction, a federal court is without “power” to hear or 26 adjudicate a claim. See Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 27 975 (9th Cir. 2012) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 28 (1998)); Kokkonen, 511 U.S. at 377. The plaintiff bears the burden of establishing the -2- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.83 Page 3 of 18 1 Court’s jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 562, 112 S. Ct. 2130, 2 119 L. Ed. 2d 351 (1992); Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 3 (9th Cir. 2006) (citation omitted). 4 Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal 5 of an action for lack of subject matter jurisdiction. Warren v. Fox Family Worldwide, 6 Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White v. Lee, 227 F.3d 1214, 1242 7 (9th Cir. 2000). Jurisdictional attacks under Rule 12(b)(1) can be either facial or factual. 8 White, 227 F.3d at 1242. A facial attack on jurisdiction asserts that the allegations in a 9 complaint are insufficient to invoke federal jurisdiction, whereas a factual attack disputes 10 the truth of the allegations that would otherwise confer federal jurisdiction. Safe Air for 11 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 12 The moving party can convert its “motion to dismiss into a factual motion by 13 presenting affidavits or other evidence.” Id. In resolving a factual attack, “[t]he court 14 need not presume the truthfulness of the plaintiff’s allegations.” Id. (citing White, 227 15 F.3d at 1242). “Once the moving party has converted the motion to dismiss into a factual 16 motion . . . the party opposing the motion must furnish affidavits or other evidence 17 necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. (internal 18 quotation marks omitted) (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 19 1039 n.2 (9th Cir.2003)); see also Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen 20 a question of the District Court’s jurisdiction is raised . . . the court may inquire by 21 affidavits or otherwise, into the facts as they exist.”). 22 B. 23 Rule 12(b)(6) A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 24 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 25 statement of the claim showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 26 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 27 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. 28 P. 12(b)(6). The plausibility standard thus demands more than a formulaic recitation of -3- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.84 Page 4 of 18 1 the elements of a cause of action, or naked assertions devoid of further factual 2 enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must 3 contain sufficient allegations of underlying facts to give fair notice and to enable the 4 opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 5 2011). 6 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 7 of all factual allegations and must construe them in the light most favorable to the 8 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 9 The court need not take legal conclusions as true merely because they are cast in the form 10 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 11 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 12 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 13 Generally, district courts may not consider material outside the pleadings when 14 assessing the sufficiency of a complaint under Rule 12(b)(6). Lee v. City of Los Angeles, 15 250 F.3d 668, 688 (9th Cir. 2001). Typically, if a party submits evidence from outside 16 the pleadings in support of a motion to dismiss under Rule 12(b)(6), and a court relies on 17 that evidence, the motion must be converted into a motion for summary judgment. 18 Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, “[a] court may take 19 judicial notice of matters of public record without converting a motion to dismiss into a 20 motion for summary judgment.” Lee, 250 F.3d at 689. 21 22 III. DISCUSSION Defendants move to dismiss both causes of action against them pursuant to Rules 23 12(b)(1) and 12(b)(6). See Doc. No. 5. The Court notes that because the Supreme Court 24 has construed a claim seeking mandamus relief to order an agency to act under 28 U.S.C. 25 § 1361 as “in essence” one for relief under § 706 of the APA, Indep. Min. Co., Inc. v. 26 Babbitt, 105 F.3d 502, 507 (1997) (quoting Japan Waling Ass’n v. American Cetacean 27 Soc’y, 478 U.S. 221, 230 n.4 (1986)); see also Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 28 2022), the Court “may elect” to analyze Plaintiff’s APA claim only. Nonetheless, for the -4- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.85 Page 5 of 18 1 sake of completeness, the Court addresses both Plaintiff’s APA claim and his claim under 2 the Mandamus Act in turn. 3 A. Administrative Procedure Act Claim 4 Plaintiff’s first claim arises under § 706(1) of the APA. The APA requires federal 5 administrative agencies to address matters presented to them “within a reasonable time.” 6 5 U.S.C. § 555(b). The statute further provides: “A person suffering legal wrong because 7 of agency action, or adversely affected or aggrieved by agency action within the meaning 8 of a relevant statute, is entitled to judicial review thereof.” Id. § 702. A reviewing court 9 has the power to “compel agency action unlawfully withheld or unreasonably delayed.” 10 Id. § 706(1). The scope of judicial review, however, is limited. A district court may only 11 compel an agency to perform a ministerial or nondiscretionary act, or to take action upon 12 a matter without directing the agency how it shall act. Norton v. S. Utah Wilderness All., 13 542 U.S. 55, 64 (2004). Additionally, the APA makes agency action unreviewable by the 14 district court if the “agency action is committed to agency discretion by law.” 5 U.S.C. 15 § 701(a)(2); see also Perez v. Wolf, 943 F.3d 853, 860 (9th Cir. 2019) (“Section 701(a)(2) 16 of the APA precludes judicial review of agency actions ‘committed to agency discretion 17 by law.’” (quoting 5 U.S.C. § 701(a)(2))). 18 Defendants first argue that the Court lacks subject matter jurisdiction under the 19 APA. See Doc. No. 5 at 6. “It is beyond question . . . that the APA does not provide an 20 independent basis for subject matter jurisdiction in the district courts.” Tucson Airport 21 Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998); see also Califano 22 v. Sanders, 430 U.S. 99, 107 (1977). However, 28 U.S.C. § 1331 confers federal subject 23 matter jurisdiction to “all civil actions arising under the Constitution, laws, or treaties of 24 the United States.” Plaintiff’s first cause of action is pursuant to the APA, a federal 25 statute. See Compl. at 6. 26 The relevant immigration statutes and regulations do not provide a time within 27 which Defendants must complete adjudication of a visa application. Some courts have 28 held that the APA does not confer jurisdiction where an agency is not compelled by law -5- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.86 Page 6 of 18 1 to take the action in question within a certain time period. However, the Ninth Circuit 2 has recently spoken on this issue. In Vaz v. Neal, the plaintiff sought to compel the 3 Executive Office for Immigration Review (“EOIR”) to complete its investigation of his 4 complaint against his former attorney under the Mandamus Act and the APA. 33 F.4th at 5 1133. The district court dismissed the action, finding that it lacked jurisdiction under 6 both the Mandamus Act and the APA. Id. The Ninth Circuit found that the district court 7 erred in determining that it lacked jurisdiction under the APA. Id. Namely, the Ninth 8 Circuit explained: 9 Subject matter jurisdiction over an APA claim rests on the federal question statute, 28 U.S.C. § 1331. Id. at 1082 n.5. So the question is whether Vaz’s APA claim “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Vaz alleges that he is entitled to relief under the APA, a federal statute, because the EOIR failed to perform its duties under federal regulations within a reasonable time. Vaz’s APA claim therefore arises under the laws of the United States, and the district court had subject matter jurisdiction. 10 11 12 13 14 15 16 Id. at 1135. The Ninth Circuit went on to note that the EOIR had a mandatory duty to 17 investigate the complaint because the governing regulation required the EOIR to initiate a 18 preliminary inquiry of the complaint upon receipt. Id. at 1136. Relevantly, the Ninth 19 Circuit concluded that although the regulations at issue “provide no timeframe in which 20 an investigation must be completed” and thus, “the EOIR has no duty to expedite or 21 complete investigations within a certain period, the EOIR does have a mandatory duty to 22 investigate complaints . . . and it must do so within a reasonable time under the APA.” 23 Id. at 1137. 24 Here, the Court finds that Defendants have a mandatory duty to adjudicate visa 25 petitions, see 22 C.F.R. § 42.81(a), and that they must do so within a reasonable time 26 under the APA, see 5 U.S.C. § 555(b). Therefore, in light of the Ninth Circuit’s recent 27 holding in Vaz, the Court finds that it has subject matter jurisdiction over Plaintiff’s APA 28 claim. -6- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.87 Page 7 of 18 1 2 Turning to whether Plaintiff has stated a claim, the APA provides that a “reviewing court shall compel agency action unlawfully or unreasonably delayed.” Id. § 706(1). 3 4 5 6 7 But “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). Thus, a court may compel agency action under the APA when the agency (1) has “a clear, certain, and mandatory duty,” Plaskett, 18 F.4th at 1082, and (2) has unreasonably delayed in performing such duty, see 5 U.S.C. § 706(1). 8 9 Vaz, 33 F.4th at 1135–36. 10 To evaluate whether an agency’s delay is unreasonable under the APA, the Court 11 turns to the six-factor balancing test set forth in Telecommunications Research & Action 12 Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (“TRAC”). See Independence 13 Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997). The TRAC factors are: 14 15 16 17 18 (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[;] 19 20 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake[;] 21 22 (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority[;] 23 24 (5) the court should also take into account the nature and extent of the interests prejudiced by delay[;] and 25 26 (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 27 28 Id. at 507 n.7 (quoting TRAC). -7- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.88 Page 8 of 18 1 Plaintiff pleads that in September 2018, he filed a visa petition with USCIS for his 2 wife, Ms. Nilforoush, and that the petition was approved in November 2019. Compl. 3 ¶ 10. However, he asserts that Defendants have not finished processing the visa, “which 4 remains stuck.” Id. ¶ 1. He contends that although he and his wife have inquired as to 5 the status of the visa on numerous occasions, they have received no meaningful 6 responses. Id. ¶ 12. According to Plaintiff “[i]t is unclear what processes if any, the 7 Defendants are actually working on.” Id. He alleges that “[s]ince Defendants have 8 offered no reason for this delay, it is per se unreasonable.” Id. ¶ 24. 9 As an initial matter, the passage of time cannot, standing alone, support a claim of 10 unreasonable delay. See INS v. Miranda, 459 U.S. 14, 18 (1982). Moreover, the delay in 11 this case is reasonable considering the impact of the COVID-19 pandemic on immigrant 12 visa application processing. 13 “Since March 2020, the COVID-19 pandemic has dramatically affected the 14 Department of State’s ability to process immigrant visa applications.”1 As Defendants 15 explain, at the beginning of the COVID-19 pandemic, routine visa services were 16 suspended at all U.S. Embassies and Consulates.2 Doc. No. 5 at 4. Services resumed in 17 July 2020. Id. However, a report from the National Visa Center (“NVC”) explains that 18 the disruption continues to severely impact the number of visas that the United States is 19 able to process, resulting in a large backlog of applications.3 Id. The NVC explains that 20 constraints vary based on local conditions and restrictions, including local and national 21 22 23 24 25 26 27 28 1 See U.S. Dep’t of State – Bureau of Consular Affairs, Suspension of Routine Visa Services (last updated July 22, 2020), https://travel.state.gov/content/travel/en/us-visas/visa-informationresources/visas-news-archive/suspension-of-routine-visa-services.html. The Court takes judicial notice of the publicly available information contained on the various U.S. Department of State websites as the authenticity of the information contained therein is not subject to reasonable dispute. See Fed. R. Evid. 201(b)(2). 2 See id. 3 See U.S. Dep’t of State – Bureau of Consular Affairs, National Visa Center (NVC) Immigrant Visa Backlog Report, (last updated Dec. 2022), https://travel.state.gov/content/travel/en/us-visas/visainformation-resources/visas-backlog.html. -8- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.89 Page 9 of 18 1 lockdowns, travel restrictions, quarantine regulations, and other measures taken by the 2 embassies and consulates to contain the spread of COVID-19. 4 Id. As of December 3 2022, the NVC reported that 411,359 applicants were ready for interviews as of 4 November 30 and 33,406 applications were scheduled for interviews in December 2022.5 5 Id. This results in 377,953 applicants who are ready for but pending scheduling of an 6 interview.6 Id. For reference, in 2019 (before the COVID-19 pandemic), on average 7 only 60,866 applicants per month were waiting for the scheduling of the interview. 7 Id. 8 9 Turning to the TRAC factors, first the Court finds that the only relevant factors are one, three, four, and five; neither the statute nor the regulations set forth a timeline for 10 visa application processing (factor two),8 and there is no evidence Defendants have 11 engaged in any improper conduct (factor six). See Vaz, 33 F.4th at 1138 n.6. 12 The first factor is the most important, though not determinative, see A Cmty. Voice 13 v. EPA, 878 F.3d 779, 786 (9th Cir. 2017), and considers “whether the time for agency 14 action has been reasonable.” Nat. Res. Def. Council, Inc. v. EPA, 956 F.3d 1134, 1139 15 (9th Cir. 2020). Here, Plaintiff has pleaded a four-year delay. Although “a reasonable 16 time for agency action is typically counted in weeks or months, not years,” Nat. Res. Def. 17 Council, 956 F.3d at 1139 (quoting A Cmty. Voice, 878 F.3d at 787 (internal quotation 18 marks omitted)), the Court nonetheless finds that this factor weighs in Defendants’ favor. 19 According to the Complaint, Plaintiff’s application was approved by USCIS just two (2) 20 months before the onset of the COVID-19 pandemic and thus quickly became subject to 21 22 23 4 See id. See id. 6 See id. 7 See id. 8 Contrary to Plaintiff’s assertion, 8 U.S.C. § 1571(b) clearly applies to the processing of immigrant benefit applications by USCIS, not immigrant visa applications by consular officials at the State Department. “Furthermore, even if § 1571 applied to this case, it is ‘non-binding legislative dicta.’” El Centro Reg’l Med. Ctr. v. Blinken, No. 3:21-cv-00361-DMS-BDD, 2021 U.S. Dist. LEXIS 138825, at *11 (S.D. Cal. July 23, 2021) (first quoting Mohsenzadeh v. Kelly, 276 F. Supp. 3d 1007 (S.D. Cal. 2017); and then citing Yang v. Cal. Dep’t of Social Servs., 183 F.3d 953, 959–62 (9th Cir. 1999)). 5 24 25 26 27 28 -9- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.90 Page 10 of 18 1 the shut-down. Next, as Defendants acknowledge, this delay is “less tolerable” since 2 Plaintiff’s and his wife’s health and welfare are at stake. See Compl. ¶ 1. However, the 3 apparent reason for the delay—policies designed to slow the spread of COVID-19—also 4 greatly implicates human health and welfare. See El Centro Reg’l Med. Ctr., 2021 U.S. 5 Dist. LEXIS 138825, at *11–12. Fourth, as many courts have acknowledged, see Jain 6 v. Renaud, No. 21-cv-03115-VKD, 2021 U.S. Dist. LEXIS 113113, at *17 (N.D. Cal. 7 June 16, 2021) (collecting cases), allowing Plaintiff to “jump the queue” would be 8 unjust—a point discussed in more detail below. Plaintiff in opposition contends that he 9 does not seek to jump the line but instead takes issue with others skipping ahead of him 10 in line. See Doc. No. 8 at 20. However, it is for the appropriate agencies or Congress to 11 determine priority, not this Court. Fifth, the Court recognizes that Plaintiff and his wife 12 are suffering during this prolonged period of separation, and the Court is particularly 13 sensitive to Ms. Nilforoush’s medical conditions. However, even assuming Plaintiff 14 obtains the relief he seeks, there is no guarantee that his visa application will be approved 15 and thus that this suffering will end. In light of these factors, the Court determines that 16 the delay of adjudication in this case is reasonable and therefore Plaintiff fails to state a 17 plausible claim for relief under the APA. 18 Further, if the Court were to convert Defendants’ motion to one for summary 19 judgment and consider the parties’ evidence, the outcome would be the same. “Federal 20 Rule of Civil Procedure 12(b)(6) specifically gives courts the discretion to accept and 21 consider extrinsic materials offered in connection with these motions, and to convert the 22 motion to one for summary judgment when a party has notice that the district court may 23 look beyond the pleadings.” Davis v. HSBC Bank, 691 F.3d 1152, 1160 (9th Cir. 2012) 24 (quoting Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 1207 (9th Cir. 25 2007) (internal quotation marks omitted)). Defendants submitted two declarations in 26 support of their motion to dismiss, and Plaintiff responded by providing his own 27 declaration. Thus, both parties were on notice that the Court may look beyond the 28 pleadings and consider this evidence. Additionally, it is unlikely that discovery would -10- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.91 Page 11 of 18 1 uncover any additional, relevant information. The parties’ evidence reveals the 2 undisputed status of Plaintiff’s visa application and the factors impacting its processing. 3 Therefore, if the Court were to convert Defendants’ motion to one for summary 4 judgment, it is clear that there is no genuine dispute of material fact, and that Defendants 5 are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); see also Vaz, 33 6 F.4th at 1135–36 (noting that by considering evidence outside of the complaint in 7 assessing the TRAC factors, the court converted the motion to dismiss into a motion for 8 summary judgment). 9 Plaintiff avers that on September 6, 2018, he properly filed with USCIS a visa 10 application for his wife, Ms. Nilforoush. Doc. No. 8-1 (“Pl. Decl.”) ¶ 4. According to 11 Plaintiff, on November 22, 2019, USCIS approved this visa petition, and the case was 12 assigned the Department of State Visa Application Number ABD2020518003. Id. ¶¶ 5, 13 6. 14 As Defendants explain, once USCIS approves a Form I-130 for consular 15 processing, the case is forwarded to the NVC for pre-processing.9 A petitioner is then 16 required to submit fees, forms, and supporting documents to the NVC.10 A beneficiary 17 must then complete an electronic application for an immigrant visa and appear before a 18 consular officer at the appropriate U.S. Embassy or Consulate for the execution of the 19 application and an interview. See 8 U.S.C. §1202(e); 22 C.F.R. §§ 42.63, 42.64. 20 Plaintiff contends that following USCIS approval, he submitted the Immigrant 21 Visa and Alien Registration Application Form (DS-260 confirmation number 22 AA009VXAOR) on December 21, 2020. Pl. Decl. ¶ 7. On March 24, 2021, Plaintiff 23 was notified that his wife’s case was “documentarily qualified”—namely, that the NVC 24 had received all of the fees, forms, and documents required prior to attending an 25 26 9 27 28 See U.S. Dep’t of State – Bureau of Consular Affairs, Immigrant Visa Process, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visaprocess/step-1-submit-apetition.html (last visited Dec. 13, 2022). 10 Se id. -11- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.92 Page 12 of 18 1 interview. Id. ¶ 9. From March 24, 2021 to July 17, 2022, Plaintiff’s wife received 2 notice via email every sixty (60) days indicating that she was awaiting scheduling of an 3 interview. Id. ¶ 10. 4 In support of their motion, Defendants offer a declaration from State Department 5 Attorney Adviser Chloe Peterman, which confirms Plaintiff’s narrative of the status of 6 his visa application. Doc. No. 5-1 (“Peterman Decl.”). Ms. Peterman explains that the 7 Consular Consolidated Database of the U.S. Department of State, Bureau of Consular 8 Affairs reflects that Plaintiff filed a Form I-130, Petition for Alien Relative, with the 9 Department of Homeland Security, United States Citizenship and Immigration Services 10 on behalf of his wife, Ms. Nilforoush, a national and resident of Iran. Peterman Decl. ¶ 3; 11 Doc. No. 5 at 2. The visa petition was received by the NVC and a case was created on 12 January 18, 2020, case number ABD2020518003. Id. ¶ 4. The visa application became 13 “documentarily qualified” for interview on March 24, 2021. Id. ¶ 5. Ms. Nilforoush is 14 currently awaiting availability of an interview appointment, “at which time the case file 15 will be transferred to the U.S. Embassy in Abu Dhabi.” Id. ¶ 6. 16 Plaintiff states that he emailed the NVC twice in March and May 2022 asking for 17 an expedited scheduling of his wife’s interview. Pl. Decl. ¶¶ 11, 12. The NVC denied 18 both requests. Id. 19 Defendants also offer a declaration by Immigrant Visa Chief Benjamin B. 20 Chapman. Doc. No. 5-2 (“Chapman Decl.”). Mr. Chapman’s declaration highlights the 21 external factors impacting the processing of Plaintiff’s visa application. He first explains 22 that a fully staffed Immigrant Visa (“IV”) Unit at the U.S. Embassy in Abu Dhabi, United 23 Arab Emirates consists of two U.S. hires and five local employees. Chapman Decl. ¶ 4. 24 In Fiscal Year 2022, one local employee retired and the position remails unfilled. Id. 25 With respect to the impact of COVID-19 on the IV Unit, he further explains: 26 27 28 In March 2020, the Consular Section suspended consular operations and provided a limited amount of emergency [American Citizen Services] and -12- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.93 Page 13 of 18 1 2 3 4 5 6 7 other urgent consular service. In July 2020, the Consular Section resumed limited scheduling of immediate relative and certain priority employmentbased (e.g., health care workers) IVs. In August 2020, the Consular Section increased the scheduling of immediate relative, family-based, and employment-based cases. From January 2021 to May 2021, post operated under a 50% in office staffing cap to mitigate the transmission of COVID-19. In June 2021, the Consular Section resumed routine [American Citizen Services], IV and [Non-Immigrant Visa] services. Id. ¶ 6. 8 Mr. Chapman notes, that, “[a]s a result of the reduction in consular services due to 9 the steps taken to protect the health and safety of U.S. Embassy personnel and the public, 10 in October 2021, the U.S. Embassy had a backlog of [immigration visas] across all 11 categories” of visas. Id. ¶ 10. 12 Mr. Chapman also details the prioritization of IV applications. Namely, in October 13 2021, the State Department’s Visa Office of the Bureau of Consular Affairs “requested 14 the [immigration visa] unit prioritize the scheduling of [immigration visas] for health care 15 workers . . . to assist with the COVID-19 pandemic response and health care worker 16 shortage in the United States. Id. ¶ 8. He further explains that throughout Fiscal Year 17 2022, “the U.S. Embassy prioritized the processing of visa services for certain individuals 18 who were evacuated from Afghanistan” and that “Abu Dhabi is the site of significant 19 U.S. government processing for Afghan nationals that fled Afghanistan following the fall 20 of Kabul in August 2021.” Id. ¶ 9. “To address the surge of special immigrant visas 21 (“SIV”) for Afghan nationals . . . , the IV Unit was allocated two adjudicators and two LE 22 staff who are temporarily assigned to the IV Unit until the end of August 2022.” Id. ¶ 4. 23 In the Spring of 2022, the IV Unit also “allocated 30 IV processing days exclusively for 24 this population, which required the U.S. Embassy to reschedule appointments for 25 interviews for other visa applicants.” Id. ¶ 9. 26 Therefore, there are no factual disputes concerning the status of Plaintiff’s visa 27 application, the existence of external factors impacting its processing, and the fact that 28 other visa applications have been prioritized. And this evidence reveals that the delay -13- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.94 Page 14 of 18 1 here is not unreasonable as a matter of law. 2 The Court’s analysis of the TRAC factors above is largely the same after reviewing 3 the evidence and it remains clear that dismissal is appropriate. Plaintiff’s wife has been 4 awaiting scheduling of her interview since March 2021. This was just some two 5 (2) months after the COVID-19 pandemic began and during a time in which interview 6 services were suspended. Further, although interviews resumed in July 2020, Plaintiff’s 7 application became further stalled by events in Afghanistan in August 2021. During this 8 time, Defendants prioritized healthcare workers and Afghan nationals who fled following 9 the fall of Kabul. Defendants’ responses to these circumstances greatly implicate human 10 health and welfare. It is not for the Court to determine priority and it would be 11 inappropriate to direct that Plaintiff “jump the queue.” The State Department has limited 12 resources and over three hundred thousand applicants pending scheduling of an 13 interview. Requiring Defendants to schedule Plaintiff’s wife’s interview forthwith would 14 interfere with their discretion in prioritizing visa requests and allocating resources. See 15 Vaz, 33 F.4th at 1138. Therefore, the Court finds that there is no genuine dispute of 16 material fact and that the delay of adjudication in this case is reasonable as a matter of 17 law. Accordingly, for this reason as well, the Court GRANTS Defendant’s motion and 18 DISMISSES Plaintiff’s APA claim. 19 B. 20 Mandamus Act Claim Plaintiff’s second claim arises under the Mandamus Act. Pursuant to the 21 Mandamus Act, “district courts shall have original jurisdiction of any action in the nature 22 of mandamus to compel an officer or employee of the United States or any agency 23 thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. However, as the 24 Ninth Circuit has stated: 25 26 27 Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individuals claim is clear and certain; (2) the official’s duty is nondiscretionary, ministerial, and so plainly 28 -14- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.95 Page 15 of 18 1 2 prescribed as to be free from doubt, and (3) no other adequate remedy is available. 3 Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003) (quoting Patel v. Reno, 134 F.3d 4 929, 931 (9th Cir. 1998) (internal quotation marks omitted)). 5 Defendants argue that “Congress has provided no deadline for scheduling of an 6 immigration visa application” and that “[t]here is no ‘clear nondiscretionary duty’ for 7 Defendants to schedule a consular interview for a non-citizen to make an application 8 within any particular time period and therefore the Court may not find a valid federal 9 cause of action under the Mandamus Act.” Doc. No. 5 at 7 (citations omitted). 10 In the context of processing immigration petitions, courts have wrestled with 11 whether the adjudication of these applications is discretionary or nondiscretionary. 12 However, this Court has recently spoken on the impact of the COVID-19 pandemic on 13 visa application processing and found the circumstances insufficient to give rise to 14 jurisdiction under the Mandamus Act: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . . for jurisdiction to attach under the Mandamus Act, Plaintiffs must demonstrate that their entitlement to an immediate adjudication is “clear and certain.” To do so, Plaintiffs must demonstrate that the government’s delay has become so unreasonable that they are entitled to a decision on the application at the present time. However, Plaintiffs cannot do so in light of the facts Defendant has introduced to demonstrate the reasonableness of the delay in this case. Approximately three months after ECRMC filed its Form I-140 Petition, the worldwide COVID-19 pandemic prompted OMB to issue a directive requiring the State Department to minimize face-to-face interactions to slow transmission of the virus. (Peterson Decl. ¶ 4.) In response to that directive, the State Department suspended all routine visa services at consular posts worldwide to ensure the safe provision of mission critical and emergency services. (Id.) The Court finds that the delay in this case is reasonable considering the operational limitations the government imposed in response to the COVID-19 pandemic. Plaintiffs’ claim for immediate adjudication therefore lacks the clarity and certainty required to confer subject matter jurisdiction under the Mandamus Act. 2021 U.S. Dist. LEXIS 138825, at *6–9. -15- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.96 Page 16 of 18 1 Here, as in El Centro Regional Medical Center, the record clearly demonstrates 2 that the delay is not unreasonable. True, Plaintiff has pleaded a delay of some four years. 3 However, Defendants factually challenge these allegations, arguing that Plaintiff makes 4 no reference to the pandemic and as a result, cannot show that processing of the visa 5 application is “unreasonably delayed.” Doc. No. 5 at 6. As described in detail above, 6 Defendants have put forth overwhelming evidence that Plaintiff’s visa application has 7 been impacted by the COVID-19 pandemic and the fall of Kabul in 2021. The backlog 8 of applications is a global problem affecting thousands, and the processing of Plaintiff’s 9 petition in particular is further complicated by the events in Afghanistan. For context, as 10 of November 2022, Plaintiff’s wife is one of 377,953 applicants who are ready for but 11 pending scheduling of an interview.11 Id. at 4. 12 In opposition, Plaintiff urges that Defendants have a nondiscretionary duty to 13 adjudicate the visa application and that he has adequately pleaded that Defendants have 14 unreasonably delayed that adjudication. Doc. No. 8 at 10. However, it is clear that 15 “agency inaction” is not the cause of the delay. Li v. Chertoff, 482 F. Supp. 2d 1172, 16 1178 (S.D. Cal. 2007); see also Zhu v. Chertoff, No. C 07-0115 JL, 2007 U.S. Dist. 17 LEXIS 114174, at *17 (N.D. Cal. June 20, 2007) (“Mandamus actions serve to highlight 18 deficiencies in agency inaction whereby the federal courts may intervene.”). Rather, the 19 delay is clearly the result of external factors and efforts by Defendants to slow the spread 20 of COVID-19 and prioritize health care workers and Afghan nationals who fled after the 21 fall of Kabul. Thus, rather than correct agency inaction, “Plaintiff’s suit simply seeks to 22 force [Defendants] to complete the adjudication in a more expeditious manner.” Li, 482 23 F. Supp. 2d at 1178. This is insufficient for jurisdiction under the Mandamus Act. So 24 long as Defendants are making reasonable efforts to complete the adjudication of 25 26 27 28 11 See U.S. Dep’t of State – Bureau of Consular Affairs, Suspension of Routine Visa Services (last updated July 22, 2020), https://travel.state.gov/content/travel/en/us-visas/visa-informationresources/visas-news-archive/suspension-of-routine-visa-services.html. -16- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.97 Page 17 of 18 1 Plaintiff’s application—namely, by working to reduce the backlog and schedule 2 interviews—the Court concludes that the pace of the processing is committed to 3 Defendants’ discretion. See id. 4 5 Even assuming the Mandamus Act requirements were satisfied, there are compelling reasons to deny relief here. As one district court explained: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 There is no question that the delay in question is systemic - that is, it is not an isolated issue applicable only to [plaintiff] or some limited group. It is also clear from the record that both HHS and Congress are aware of the problem and the possible solutions. In light of this, the Court fails to see how mandamus would address the problem in any constructive way. [Plaintiff] neither requests, nor would it likely be appropriate to grant, wide systemic relief to all similarly situated parties. This would presumably either require the Court to order the Secretary to hire more ALJs, for which it does not appear to have budgeted funds, or somehow order the Secretary, contrary to [D]HHS’s statutory mandate, to reduce the denial of claims. Even if it might be appropriate to order an executive agency to take similar kinds of actions in very serious circumstances, there is no suggestion that it would be appropriate where the issue fails to have a constitutional dimension and the political branches are already working out a solution to the problem, albeit slowly. Given this, mandamus would merely allow [plaintiff] to jump the queue of other identically situated parties. Not only would this be arbitrary and unjust, it would encourage a barrage of mandamus actions by others seeking to also jump to the front of the line. This would both greatly burden the courts and would ultimately be self-defeating - not everyone can jump to the front of the line at the same time. 20 21 Casa Colina Hosp. & Ctrs. for Healthcare v. Burwell, No. CV 15-3990 DSF (ASx), 2015 22 U.S. Dist. LEXIS 148378, at *2 (C.D. Cal. Oct. 30, 2015). The Ninth Circuit affirmed 23 the district court’s decision, albeit in an unpublished memorandum, noting that “even if 24 the three [mandamus] elements are satisfied,” the “extraordinary remedy of mandamus 25 lies within the discretion of the trial court,” and finding that “[t]he district court 26 appropriately concluded that granting relief would merely allow [the plaintiff] ‘to jump 27 the queue of other identically situated parties’ and would therefore achieve an arbitrary 28 result and ‘encourage a barrage of mandamus actions by others.’” Casa Colina Hosp. & -17- 22-cv-872-MMA (KSC) Case 3:22-cv-00872-MMA-KSC Document 10 Filed 12/14/22 PageID.98 Page 18 of 18 1 2 Ctrs. for Healthcare v. Wright, 698 F. App’x 406, 407 (9th Cir. 2017). As discussed above, the delay in processing visa applications is systemic and it is 3 unquestionably one of the many unfortunate results of recent events, including the 4 COVID-19 pandemic and the fall of Kabul. It would be inappropriate for the Court to 5 direct Defendants to process the backlog faster, especially given the variables and many 6 different host countries at play. Alternatively, to allow Plaintiff to “jump the queue” 7 would not only be arbitrary and unjust but it would open federal courts to a barrage of 8 mandamus actions by the masses that are awaiting a decision on their immigration 9 applications since the beginning of the COVID-19 pandemic. As a result, even assuming 10 the factors were satisfied, the Court finds that mandamus is inappropriate in this case. 11 For these reasons, the Court GRANTS Defendants’ motion and DISMISSES 12 Plaintiff’s claim for relief under the Mandamus Act for lack of subject matter jurisdiction. 13 IV. CONCLUSION 14 For the foregoing reasons, the Court GRANTS Defendants’ motion and 15 DISMISSES this action. The Court DIRECTS the Clerk of Court to enter judgment 16 accordingly and close this case. 17 18 IT IS SO ORDERED. Dated: December 14, 2022 19 _____________________________ 20 HON. MICHAEL M. ANELLO United States District Judge 21 22 23 24 25 26 27 28 -18- 22-cv-872-MMA (KSC)
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