Afghan and Iraqi Allies v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
AFGHAN AND IRAQI ALLIES UNDER )
SERIOUS THREAT BECAUSE OF THEIR )
FAITHFUL SERVICE TO THE UNITED )
STATES, ON THEIR OWN AND ON )
BEHALF OF OTHERS SIMILARLY )
SITUATED, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-cv-01388 (TSC)
)
MICHAEL R. POMPEO, CARL C. RISCH, )
UNITED DEPARTMENT OF STATE, )
KIRSTJEN NIELSEN, L. FRANCIS )
CISSNA, DONALD NEUFELD, and )
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiffs are five anonymous Afghan or Iraqi nationals seeking refuge in the United

States. They allege that they “provided faithful and valuable service to the US government or its

allied forces” in their capacities as employees of or on behalf of the United States government

over the past several years. (ECF. No. 23 (“Am. Compl.”) at ¶¶ 1, 56, 58, 60, 62.) They allege

that because of their service, they “face an ongoing serious threat to their lives in their home

countries.” (Id.) In response to various threats and acts of violence, Plaintiffs submitted Special

Immigrant Visa (“SIV”) applications to the U.S. Department of State, seeking lawful admission

into the United States. (Id. at ¶¶ 13–17.) Two Plaintiffs submitted their applications in 2013,

one in 2015, and the other two in 2016. (Id.) Plaintiffs claim that at the time they filed this

1
action on June 12, 2018, none of their SIV applications had received a final decision. (Id. at

¶¶ 57, 59, 61, 63, 65.)

Plaintiffs bring this case on behalf of themselves and a class of all people who have

applied for an Afghan or Iraqi SIV pursuant to the Afghan Allies Protection Act of 2009, Pub. L.

111-8, 123 Stat. 807, or the Refugee Crisis in Iraq Act of 2007, Pub. L. 110-181, 122 Stat. 395,

by submitting an application for Chief of Mission Approval, and whose applications have been

awaiting government action for longer than nine months. 1 (ECF No. 3 (“Mot. Class

Certification”) at 1.) Plaintiffs allege that Defendants have failed to process and adjudicate

Plaintiffs’ SIV applications within a reasonable time. (Am. Compl. at ¶ 1.) They request, among

other things, that this court (i) enter a declaratory judgment stating that Defendants have

unreasonably delayed the processing and adjudication of all applications that have been in

government-controlled steps for longer than nine months, (ii) compel Defendants to adjudicate

the SIV applications, and (iii) compel Defendants to appoint two SIV coordinators. (Id. at

¶¶ 68–92.)

Defendants have moved, pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), to partially dismiss Plaintiffs’ Amended Complaint for lack of subject matter

jurisdiction and failure to state a claim. Upon consideration of Defendants’ motion and the

parties’ briefs in support thereof and in opposition thereto, and for the reasons set forth below,

the motion is hereby DENIED.

1
Plaintiffs’ motion for class certification is granted on a provisional basis for the sole purpose of
resolving Defendants’ partial motion to dismiss (ECF No. 30), Plaintiffs’ motion for preliminary
injunction, (ECF No. 34), and Plaintiffs’ motion for expedited discovery (ECF No. 35).
Plaintiffs’ counsel is appointed to represent the provisional class.

2
 I. FACTUAL BACKGROUND 2

A. Refugee Crisis in Iraq Act and Afghan Allies Protection Act

In 2007, Congress enacted the Refugee Crisis in Iraq Act (“RCIA”), in part to fulfill the

United States’ “fundamental obligation to help the vast number of Iraqis displaced in Iraq and

throughout the region by the war and the associated chaos, especially those who have supported

America’s efforts in Iraq.” S. Res. 1651, 110th Cong. (2007) (enacted). In so doing, Congress

noted:

Many Iraqis who have worked in critical positions in direct support of the United
States Government in Iraq have been killed or injured in reprisals for their support
of the American effort. Many more Iraqis associated with the United States have
fled Iraq in fear of being killed or injured.

Id. Under the RCIA, Iraqi nationals can apply and interview for admission to the United States

as special immigrants if they: (1) were or are “employed by or on behalf of the United States

Government in Iraq, on or after March 20, 2003, for not less than one year”; (2) “provided

faithful and valuable service to the United States Government”; and (3) “experienced or [are]

experiencing an ongoing serious threat as a consequence of [their] employment by the United

States Government.” RCIA §§ 1242(a)(2), 1244(b)(1).

In 2009, Congress enacted the Afghan Allies Protection Act (“AAPA”), with similar

objectives. (Am. Compl. ¶¶ 4, 28.) Pursuant to the AAPA, certain Afghan nationals may

receive special immigrant status if they: (1) were or are “employed by or on behalf of the United

States Government in Afghanistan on or after October 7, 2001, for not less than one year”; (2)

“provided faithful and valuable service to the United States Government”; and (3) “experienced

2
Unless otherwise indicated, the following facts are taken from the Amended Complaint, and are
assumed to be true for the purposes of deciding the instant motion.

3
or [are] experiencing an ongoing serious threat as a consequence of [their] employment by the

United States Government.” AAPA §§ 602(b)(1)–(2).

Plaintiffs allege that after the enactment of the RCIA and AAPA, applicants to both

programs experienced “considerable processing delays that risked the lives of the very applicants

they were intended to protect.” (Am. Compl. ¶ 34.) For example, by mid-2011, four years after

the start of the Iraqi SIV program, while nearly 30,000 Iraqi applicants and their family members

had applied for the SIV program, only 4,000 applications had been processed. (Id. ¶ 37.) And,

while some of the Iraqi applicants waited for a decision, they “endur[ed] threats or acts of

violence against themselves and their families because of their assistance to the US

Government.” (Id. ¶ 34.)

In 2013, Congress amended the RCIA and AAPA to “improve the efficiency by which

applications for special immigrant visas . . . are processed.” RCIA § 1242(c)(1); AAPA

§ 602(b)(4)(A). Per the amendment, all government-controlled steps incidental to issuing the

SIVs, “including required screenings and background checks,” should be completed within nine

months after submission of a complete application. Id. However, additional time may be taken

to process “visas in high-risk cases for which satisfaction of national security concerns requires

additional time.” RCIA § 1242(c)(2); AAPA § 602(b)(4)(B). The amendment also required the

Secretary of State and the Secretary of Homeland Security, in consultation with the Secretary of

Defense, to publish periodic reports describing “the implementation of improvements to the

processing of applications for special immigrant visas.” RCIA § 1242(f)(2); AAPA

§ 602(b)(12)(B). These reports must include, among other things, information on enhancements

made to provide for the orderly processing of applications without significant delay and “the

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reasons for the failure to process any applications that have been pending for longer than 9

months.” Id.

B. Afghan and Iraqi SIV Application Process

To successfully obtain admission into the United States through the SIV program, Iraqi

and Afghan nationals must complete fourteen steps. (Am. Compl. ¶ 31.) In the January 2018

joint periodic report, incorporated by reference in Plaintiffs’ Amended Complaint (see id. ¶¶ 45–

46, 48), the steps are grouped together to comprise a four-stage process. (See ECF No. 36-14 at

58–62 (“January 2018 Joint Report”).)

The first stage is referred to as the “Chief of Mission (‘COM’) application process.” (Id.

at 2.) It begins at step one with the submission of an application, including “a ‘statement of

credible threat’ detailing the ongoing threat to the applicant as a result of the applicant’s service

and a letter of recommendation from a supervisor attesting to the applicant’s ‘faithful and

valuable service.’” (Am. Compl. ¶ 31.) At steps two through five, the National Visa Center

(“NVC”) reviews the application and sends it to COM, who either approves or denies it. (Id.)

An applicant who is denied has a statutory right to appeal the decision within 120 days. (Id.) In

2017, the successful appeal rate at the COM Approval stage was 40% for Iraqi applicants and

66% for Afghan applicants. (Id.)

The second stage is the “Form I-360 adjudication process.” (January 2018 Joint Report

at 2.) It consists of steps six and seven. (Id.) At step six, the applicant submits a Special

Immigrant Petition to U.S. Citizenship and Immigration Services (“USCIS”) for categorization

as a special immigrant. (Am. Compl. ¶ 31.) At step seven, USCIS “adjudicates the Special

Immigrant Petition and communicates the results to NVC.” (Id.)

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 The third stage is the “Visa Interview Process”; it includes steps that occur before and

after the interview. (January 2018 Joint Report at 3.) At steps eight through eleven, which occur

before the interview, the NVC requests and reviews “standard immigrant visa documentation”

from the applicant to determine whether the applicant is admissible to the United States and

eligible for a United States visa. (Am. Compl. ¶ 31.) If the applicant is eligible, she will be

contacted to schedule an interview at the embassy in Afghanistan or Iraq. (Id.) Step twelve is an

interview with a consular officer. (Id.) Following the interview, if the applicant has not been

denied, her case undergoes step thirteen, administrative processing. (Id.)

The fourth and final stage is known as “Visa issuance to eligible applicants.” (January

2018 Joint Report at 3.) This stage consists of only one step—fourteen. Id. After obtaining a

medical examination, eligible applicants are issued an SIV. Id. With an SIV, an individual is

“eligible to receive resettlement benefits upon arrival and to apply for adjustment of status to

seek the status of lawful permanent resident and ultimately of citizen.” (Am. Compl. ¶ 33.)

C. Provisional Class Representatives

There are five provisional class representatives: Mr. Doe-Alpha, Ms. Doe-Bravo, Mr.

Doe-Charlie, Ms. Doe-Delta, and Mr. Doe-Echo. The provisional class representatives are SIV

applicants, who reside in either Iraq or Afghanistan and “live in fear of reprisal for their service

to the US government while they await final decisions from Defendants on their applications.”

(Id. ¶ 55.) In the case of each provisional class representative, Plaintiffs allege that “Defendants

have now taken far longer than the statutorily-allowed nine months to complete all government-

controlled processing steps.” (Id.)

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 1. Mr. Doe-Alpha

Mr. Doe-Alpha is an Afghan national who applied to the SIV program on September 25,

2013, following approximately two years of service to a United States government contractor.

(Id. ¶¶ 13, 56–57.) Although Mr. Doe-Alpha fled his Taliban-controlled hometown and

relocated his wife and daughter to a nearby city, his family members who remained behind have

been repeatedly threatened and harassed by individuals self-identifying as the Taliban. (Id. ¶¶ 9,

56.) In addition, at some point, the Taliban placed Mr. Doe-Alpha’s parents under house arrest.

(Id. ¶ 56.) As a result, Mr. Doe-Alpha fears that if he returns to his hometown, he will be

targeted by the Taliban. (Id.)

When the Amended Complaint was filed, Mr. Doe-Alpha had been seeking a final

decision on his SIV application for almost five years. (Id. ¶ 57.) Defendants took “over four

months for the initial COM decision; five days for his Special Immigrant Petition; and over

twelve months for his visa interview.” (Id.) On June 11, 2015, Mr. Doe-Alpha had his visa

interview. (Id.) Since then, his application has remained at stage three, step thirteen of the

Afghan SIV application process—administrative processing. (Id.)

2. Ms. Doe-Bravo

Ms. Doe-Bravo is an Afghan national who applied to the SIV program on October 15,

2015, following approximately two years of service to a United States government-funded

development organization. (Id. ¶¶ 14, 58–59.) In response to frequent death threats via letter

and phone, Ms. Doe-Bravo has changed her phone number and relocated with her husband and

three young children numerous times. (Id. ¶¶ 9, 58.) She alleges that she feels hopeless and

unable to trust anyone as she recovers from her recent childbirth and cares for her newborn. (Id.

¶ 58.)

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 When the Amended Complaint was filed, Ms. Doe-Bravo had been seeking a final

decision on her SIV application for almost three years. (Id. ¶ 59.) Defendants took nearly three

months to issue a denial on her application for COM Approval, which she subsequently

appealed. (Id.) Twenty-nine months after Doe-Bravo submitted her appeal and four days before

she filed her Amended Complaint, Defendants granted her request for COM Approval and

informed her that she was authorized to submit her Special Immigration Petition. (Id.) At the

time of her response to the motion to dismiss, Ms. Doe-Bravo’s application was at stage two,

step six of the Afghan SIV application process—submission of the Special Immigration Petition

to USCIS for categorization as a special immigrant—and she was taking prompt action to make

the requisite submission. (Id.)

3. Mr. Doe-Charlie

Mr. Doe-Charlie is an Afghan national who applied to the SIV program on April 18,

2016, following approximately four years of service as an interpreter and translator for two U.S.

military contractors. (Id. ¶¶ 15, 60–61.) Mr. Doe-Charlie and his family have received death

threats, (id. ¶ 60), and the Taliban attacked and repeatedly stabbed Mr. Doe-Charlie’s brother,

believing he was Mr. Doe-Charlie, (id. ¶¶ 9, 60). Although Mr. Doe-Charlie has relocated to

protect his family, he continues to fear for their safety. (Id.)

At the time of the Amended Complaint, Mr. Doe-Charlie had been awaiting a final

decision on his SIV application for over two years. (Id. ¶ 61.) Defendants took over eight

months to deny his application for COM Approval, which he subsequently appealed on April 3,

2017. (Id.) Since that time, Mr. Doe-Charlie has been awaiting a decision on his renewed

application for COM Approval, which places his application at stage one, step four of the

Afghan SIV application process—COM review. (Id.)

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 4. Ms. Doe-Delta

Ms. Doe-Delta is an Afghan national who applied to the SIV program on December 23,

2016, following approximately three years of service to a U.S. government communications

contractor. (Id. ¶¶ 16, 62–63.) The nature of her position requires her to travel with colleagues

to active conflict zones and interact with the public. (Id. ¶ 62.) The Taliban has threatened her

and her family, and masked men have followed her and her family. (Id. ¶¶ 9, 62.) Ms. Doe-

Delta and her father also have been threatened with Ms. Doe-Delta’s death if she did not quit her

job. (Id.) As a result, Ms. Doe-Delta constantly feels unsafe. (Id. ¶ 62.)

At the time of the Amended Complaint, Ms. Doe-Delta had been awaiting a final decision

on her SIV application for over a year and a half. (Id. ¶ 63.) Because she has yet to receive a

decision on her COM application, her application is in the initial steps of stage one of the Afghan

SIV application process. (Id.)

5. Mr. Doe-Echo

Mr. Doe-Echo is an Iraqi national who applied to the SIV program in July 2013,

following approximately two years of service as a translator for U.S. forces, “including eight

months training Iraqi police at the request of the United States.” (Id. ¶¶ 17, 64–65.) Because of

his service, Mr. Doe-Echo has been threatened by militants, who shot at his home, and who

kidnapped and murdered his father. (Id. ¶¶ 9–10, 64.) After his father’s murder, Mr. Doe-Echo

fled Iraq, but has since had to return because he was unable to find a job or otherwise support

himself. (Id. ¶ 64.) He now lives in hiding in Iraq. (Id.)

At the time of the Amended Complaint, Mr. Doe-Echo had been awaiting a final decision

on his SIV application for almost five years. (Id. ¶ 65.) Defendants took “approximately sixteen

months for the original COM decision; nearly a month for his COM Appeal to be granted; nearly six

months for his Special Immigrant Petition; and nearly three months to schedule and hold his

9
interview.” (Id.) On February 3, 2016, Mr. Doe-Echo had his visa interview. (Id.) Since that

time, his application has remained at stage three, step thirteen of the Iraqi SIV application

process—administrative processing. (Id.)

D. Procedural History

On June 12, 2018, Plaintiffs filed this action, moved for class certification, and moved for

the appointment of class representatives as well as class counsel. (ECF Nos. 1, 3–4.) One month

later, on July 12, 2018, Plaintiffs filed an Amended Complaint. (ECF No. 23.) Defendants then

moved to partially dismiss Plaintiffs’ Amended Complaint on August 13, 2018. (ECF No. 30.)

On September 7, 2018, Plaintiffs filed a motion for preliminary injunction and a motion

for expedited discovery shortly before their response to Defendants’ partial motion to dismiss.

(ECF Nos. 34–36.) Plaintiffs’ preliminary injunction motion explained that the additional filings

were in response to “Defendants’ failure to produce data in informal discovery that should have

been simple for them to produce,” and “[i]n order to avoid further delay.” (ECF No. 34 at 13.)

Plaintiffs also requested permission to supplement the preliminary injunction motion once

discovery had been completed. (See id.)

On September 28, 2018, Defendants filed a reply in support of their pending partial

motion to dismiss, a response to Plaintiffs’ motion to expedite discovery, and a response to

Plaintiffs’ motion for a preliminary injunction. (ECF Nos. 41–43.) Defendants argue, in part,

that Plaintiffs’ motion to expedite discovery should be denied because the court has not ruled on

Defendants’ partial motion to dismiss. (See ECF No. 41 at 5.)

Because Plaintiffs’ preliminary injunction motion includes a request to supplement the

motion with discovery before the court rules on the merits, the court turns first to Defendants’

partial motion to dismiss.

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 II. LEGAL STANDARD

Federal courts are of limited jurisdiction and “may not exercise jurisdiction absent a

statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005); see

also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). “Limits on subject-matter jurisdiction ‘keep the

federal courts within the bounds the Constitution and Congress have prescribed,’ and those limits

‘must be policed by the courts on their own initiative.’” Watts v. SEC, 482 F.3d 501, 505 (D.C.

Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). Such limits

are especially important in the agency review context, where “Congress is free to choose the

court in which judicial review of agency decisions may occur.” Am. Petroleum Inst. v. SEC, 714

F.3d 1329, 1332 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Watts, 482 F.3d at

505). The law presumes that “a cause lies outside [the court’s] limited jurisdiction” unless the

party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994) (citation omitted). Thus, plaintiffs bear the burden of establishing

jurisdiction by a preponderance of the evidence. See Lujan v. Defenders. of Wildlife, 504 U.S.

555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).

In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter

jurisdiction, a court must “assume the truth of all material factual allegations in the complaint

and ‘construe the complaint liberally, granting plaintiff[s] the benefit of all inferences that can be

derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). “Nevertheless, ‘the

court need not accept factual inferences drawn by plaintiffs if those inferences are not supported

by facts alleged in the complaint, nor must the Court accept [plaintiffs’] legal conclusions.’”

11
Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United

States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). Importantly, the court “is not limited to the

allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986),

vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials

outside the pleadings as it deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22

(D.D.C. 2000) (citing, inter alia, Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.

1992)).

Conversely, a motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the

legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

“To survive a 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

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible

when the factual content allows the court to “draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. Plaintiffs’ factual allegations do not need to be

“detailed,” but “the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-

harmed-me accusation.’” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016)

(citing Twombly, 550 U.S. at 570).

III. ANALYSIS

A. Subject-Matter Jurisdiction

Defendants’ motion to dismiss for lack of subject-matter jurisdiction is premised entirely

upon their contention that Plaintiffs lack standing to bring the first three causes of action, which

seek, in part, a declaration that Defendants’ delay is unreasonable as well as an order compelling

12
Defendants to adjudicate the applications pursuant to the Administrative Procedure Act (“APA”),

5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. (See ECF. No. 30 (“Defs.’ Mot. to

Dismiss”) at 20–32.) In so contending, Defendants explicitly ask this court to reject the

reasoning and holding of another court in this district. (See id. at 16 n.8.)

In Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United

States v. Kerry, 168 F. Supp. 3d 268 (D.D.C. 2016), Judge Gladys Kessler was presented with

the question of whether the nine plaintiffs, Iraqi and Afghan citizens who had applied for SIVs,

had standing to seek an order compelling the defendants to adjudicate their applications within a

reasonable period of time, pursuant to the APA and the Mandamus Act. Id. at 272–73. Of those

nine plaintiffs, three of them presented factual circumstances akin to those presented here.

In Nine Iraqi Allies, one plaintiff—Plaintiff Kilo—had been waiting for COM approval

for almost two years. Id. at 292. The government contended that Kilo lacked standing because,

“not having submitted an SIV application, he [could not] claim that he [was] injured by the

Government’s failure to adjudicate an SIV application.” Id. In rejecting this argument, Judge

Kessler noted that a statutory provision required Kilo to obtain COM Approval before submitting

his full SIV application; that there was nothing he could do without the approval; that review of

applications for COM Approval was non-discretionary; and that a statutory provision gave

applicants who had been denied a right to appeal. Id.

In Nine Iraqi Allies, two plaintiffs—Plaintiffs Hotel and Lima—had completed the visa

interview and had remained at the “administrative processing” step for over four years. Id. at

278–79. The government contended that “administrative processing” was synonymous with

“final refusal,” and thus Plaintiffs lacked standing to pursue their claims. Id. at 284. In ruling in

favor of the Plaintiffs, the district court noted that the government’s “own actual practices and

13
statements” belied their assertions. Id. For example, “administrative processing” was listed in

the Joint Reports to Congress as step 13 of the 14 required steps in the SIV application process.

Id. In addition, a U.S. Embassy website explained that applicants should see one of three status

indicators when logging into the State Department’s Consular Electronic Application Center:

administrative processing, issued, or refused. Id. at 286. Judge Kessler concluded that

the Government endeavored to enjoy the benefits of consular nonreviewability . . .
without having to report to Congress that it has denied the SIV applications of
many Iraqis and Afghans who supported the United States’ military efforts in
their countries. The applications have either been finally denied or they are still
working their way through the 14 steps the Government requires to be completed.
The Government cannot have it both ways.

Id. at 289.

In light of specific factual circumstances attendant to the plaintiffs in each category, the

court held that the plaintiffs had standing to bring the claims because (1) they had suffered an

injury in fact, “the failure to receive final decisions on their SIV applications within a reasonable

period”; (2) their injury was “quite clearly caused by [the] [d]efendants’ conduct”; and (3) an

order to adjudicate the plaintiffs’ applications “would directly redress [the] [p]laintiffs’ injury

caused by the [g]overnment’s failure to decide.” Id. at 281–82. Judge Kessler further held that

the defendants’ adjudication of the plaintiffs’ SIV application within nine months was non-

discretionary, “that judicially manageable standards exist to measure the [g]overnment’s

performance of its duty, and that the national security exception does not undermine these

conclusions.” Id. at 295.

In this case, Defendants directly challenge two of the court’s holdings in Nine Iraqi

Allies. First, Defendants urge the court to find that none of the Plaintiffs have suffered an injury-

in-fact, and therefore have no standing to sue. Second, Defendants argue that Plaintiffs have not

identified a non-discretionary agency action to compel.

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 1. Plaintiffs have standing to bring their claims.

In order to have standing to sue, (1) Plaintiffs must have “suffered an ‘injury in fact,’”

that was or is “actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) there must be a causal

relationship between the injury and the basis for the claim; and (3) it must be “‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”

Lujan, 504 U.S. at 560–61 (quoting Allen v. Wright, 468 U.S. 737, 756 (1984); Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990); Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 38

(1976)).

a. Plaintiffs Doe-Bravo, Doe-Charlie, and Doe-Delta

Defendants argue that Plaintiffs Doe-Bravo, Doe-Charlie, and Doe-Delta have no

standing to sustain the first three causes of action because they have not filed a complete visa

application and thus have not suffered a cognizable legal injury that is redressable by the court.

(Defs.’ Mot. to Dismiss at 21–23.) In the alternative, Defendants assert that the nine-month

deadline does not apply to Doe-Bravo, Doe-Charlie, and Doe-Delta because an officer has not

yet determined that they are “eligible” for an SIV. (Id. at 23.) These arguments are unavailing.

That these three Plaintiffs have yet to reach steps 8 and 9—when they would be directed

to submit and subsequently do submit “standard immigrant visa documentation”—is of no

consequence where, as here, Plaintiffs can do nothing to advance their applications without non-

discretionary action by the government.

When this case was filed, Plaintiff Doe-Bravo was awaiting COM Approval. (Am.

Compl. ¶ 59.) Subsequently, she received COM Approval, which allowed her to move to the

second stage—the Form I-360 adjudication process. (Id.) While a final decision, favorable or

unfavorable, would render her claims moot, see e.g., Nine Iraqi Allies, 168 F. Supp. 3d at 277–78

15
(finding claims moot where plaintiffs had received a visa), her progression through the process

while this case has been pending does not. As detailed above, once Doe-Bravo submits the

requisite documents, she must wait for USCIS, an agency of the Department of Homeland

Security, to rule on her petition. USCIS’ obligation to issue a decision is non-discretionary. See

APAA §§ 602(b)(1)(D), (b)(12)(B)(v)(II) (providing that an applicant must clear “a background

check and appropriate screening, as determined by the Secretary of Homeland security” and

stating that quarterly reports shall include information on the total number of applications that

are pending due to USCIS’ “failure . . . to complete the adjudication of the Form I-360”).

Second, Plaintiffs Doe-Charlie and Doe-Delta, like Plaintiff Kilo in Nine Iraqi Allies, are

still awaiting COM Approval (Am. Compl. ¶¶ 61, 63), and therefore cannot submit a full SIV

application because, pursuant to the APAA, COM Approval confirming their “employment and

faithful and valuable service to the United States Government” is a pre-requisite to submitting

the full SIV application. APAA § 602 (b)(2)(D)(i). The COM or her designee’s obligation to

issue a decision is non-discretionary. See APAA §§ 602(b)(2)(D)(i), (b)(12)(B)(v)(I) (providing

that the appropriate Chief of Mission, or her designee, “shall conduct a risk assessment of the

alien and an independent review of records maintained by the United States Government or

hiring organization or entity to confirm employment and faithful and valuable service” and

stating that quarterly reports shall include information on the total number of applications that

are pending due to USCIS’ “failure to receive approval from the Chief of Mission”).

Therefore, all three Plaintiffs have carried their burden by showing that they have

suffered and continue to suffer an injury in fact: “the failure to receive final decisions on their

SIV applications within a reasonable period.” Nine Iraqi Allies, 168 F. Supp. 3d at 282.

Because these three Plaintiffs have established injury-in-fact, without reliance on the nine-month

16
deadline, the court need not assess Defendants’ alternative argument regarding the meaning of

the phrase “eligible alien” in the provision referencing the nine-month deadline. See e.g.,

Hamandi v. Chertoff, 550 F. Supp. 2d 46, 50 (D.D.C. 2008) (holding that jurisdiction is proper

over an unreasonable delay claim even when the applicable statute “does not specify a timeframe

for action”); see also Telecomm. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 80 (D.C. Cir.

1984) (setting forth a standard to assess unreasonable delay claims that permits consideration of

a Congress-provided timetable, but does not require a timetable for consideration of a claim).

Having determined that an injury-in-fact exists, the court must next assess whether

Plaintiffs have carried the remainder of their burden by establishing the other two requirements

for standing—a causal relationship and redressability. Defendants do not dispute the causal

relationship, nor could they reasonably. As the court found in Nine Iraqi Allies, “Plaintiffs’

alleged injury—the lack of final decisions on their SIV applications—is quite clearly caused by

Defendants’ conduct (i.e., Defendants’ failure to adjudicate the applications).” Nine Iraqi Allies,

168 F. Supp. 3d at 282. In terms of redressability, Defendants summarily contend that were this

court to grant the requested relief, Plaintiffs could not submit a complete visa application.

(Defs.’ Mot. to Dismiss at 23.) But this argument mischaracterizes Plaintiffs’ requested relief.

Plaintiffs seek final adjudication of their applications; not a specific outcome. If Plaintiffs are

granted a visa, their injury will be redressed. If Plaintiffs are finally denied at any of the

intermediary steps, although it is not their desired outcome, their injury—the lack of

adjudication—also will be redressed.

Accordingly, the court finds that Plaintiffs Doe-Bravo, Doe-Charlie, and Doe-Delta have

alleged sufficient facts to establish standing to sue for an order compelling Defendants to

adjudicate their SIV applications in a reasonable amount of time.

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 b. Plaintiffs Doe-Alpha and Doe-Echo

Defendants challenge whether Plaintiffs Doe-Alpha and Doe-Echo have standing to

sustain the first three causes of action because they argue that, contrary to the findings in Nine

Iraqi Allies, “administrative processing” is in fact synonymous with “final refusal.” (Defs.’ Mot.

to Dismiss at 23–29.) Thus, according to Defendants, Plaintiffs Doe-Alpha and Doe-Echo

cannot ask this court to “review and reverse discretionary visa denials by consular officers.” (Id.

at 28–29.) In response, Plaintiffs contend that all applicants who complete an interview,

regardless of whether they are issued a visa, must go through the administrative processing step,

and therefore “administrative processing” and “final refusal” are different steps. Plaintiffs have

the better of this argument.

Plaintiffs Doe-Alpha and Doe-Echo, like Plaintiffs Hotel and Lima in Nine Iraqi Allies,

have completed their visa interviews and remain at step 13—the administrative processing step.

(Am. Compl. ¶¶ 57, 65.) Plaintiffs cite to an abundance of evidence indicating that the

administrative processing step that Plaintiffs Doe-Alpha and Doe-Echo have been in since 2015

and 2016, respectively, is separate and apart from a final adjudication. First, Plaintiffs have

shown that Defendants’ policy mandates administrative processing for every applicant who has a

visa interview before a final decision can be made. The State Department’s website states, “even

if your visa interview is successful, you will not receive your visa on the same day. All SIV

applicants require additional administrative processing after the interview.” (ECF No. 36-13

(“Poellot Decl.”) Ex. C at 19 (emphasis in original).) And, as discussed above, the Joint Reports

state that a visa issues only “[u]pon completion of administrative processing.” (Id. Ex. A at 5.)

Second, Plaintiffs have adduced evidence that, as a matter of practice, after every interview,

applicants are handed a form indicating that their “application is ‘refused’ pending

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‘administrative processing’ and/or pending submission of additional documents requested by

DOS.” (Id. ¶ 10.) The “‘refusals’ are not treated as and are not intended to be final adjudications

of an SIV application. Rather, . . . administrative processing is an expected and anticipated part

of the SIV process.” (Id. ¶ 11.) Third, Plaintiffs have been told that their applications are still

being processed and that they will receive further information about their applications. For

example, Plaintiff Doe-Alpha was informed that his case was “pending administrative processing

in order to verify [his] qualifications for [a] visa.” (See ECF No. 36-8 (“Doe-Alpha Decl.”) Exs.

B–D.) And, while Plaintiff Doe-Echo’s case was in administrative processing, he was told that

his “case [w]as in the final stages of processing” and that while the Immigration Visa Unit could

not tell him exactly when he would receive his visa, it would be “relatively soon.” (ECF No. 36-

2 (“Doe-Echo Decl.”) Ex. B.)

These facts establish that administrative processing is not a final adjudication but a

mandatory intermediate step. Applicants who languish in that step for unreasonable periods of

time suffer and continue to suffer an injury in fact: “the failure to receive final decisions on their

SIV applications within a reasonable period.” Nine Iraqi Allies, 168 F. Supp. 3d at 282. Thus,

Plaintiffs have met part of their burden by establishing the first requirement for standing.

As with the other group of Plaintiffs, Defendants cannot reasonably dispute the presence

of a causal relationship, and, as to redressability, here again Defendants misapprehend Plaintiffs

Doe-Alpha and Doe-Echo’s requested relief. They do not seek judicial review of a consular

decision, but instead seek a final decision on their applications. Plaintiffs Doe-Alpha and Doe-

Echo are in a state of liminality: Will their application be granted so that they can progress to

step 14? Or, will their application be denied, which will remove them from consideration

altogether? A decision, favorable or unfavorable, will redress their injury.

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 Accordingly, the court finds that Plaintiffs Doe-Alpha and Doe-Echo have alleged

sufficient facts to establish standing to sue for an order compelling Defendants to adjudicate their

SIV applications in a reasonable amount of time.

2. Plaintiffs have identified a required action to compel under the APA and the
Mandamus Act.

Finally, Defendants argue that all Plaintiffs lack standing to bring claims under the APA

and Mandamus Act because their applications have been timely refused or not even submitted,

and therefore there is no discretionary action to challenge. (Defs.’ Mot. to Dismiss at 29–32.)

The APA and the Mandamus Act each provide a cause of action to remedy a government

agency’s inaction. More specifically, the APA allows a court to “compel agency action

unlawfully withheld or unreasonably delayed.” 5 U.S.C.A. § 706. And the Mandamus Act

grants district courts original jurisdiction “of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. Notably, a claim under either the APA or the Mandamus Act may

not be sustained unless the act sought to be compelled is a clear nondiscretionary duty. See

Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (“[Section] 706(1) empowers a court

only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action

upon a matter, without directing how it shall act.’”); Pittston Coal Grp. v. Sebben, 488 U.S. 105,

121 (1988) (“The extraordinary remedy of mandamus under 28 U.S.C. § 1361 will issue only to

compel the performance of ‘a clear nondiscretionary duty.’”).

In arguing that Plaintiffs cannot identify a non-discretionary action, Defendants rely only

on their proffered understanding of the status of each Plaintiff’s application and the notion that

the nine-month deadline is inapplicable to applicants unless and until they receive a visa. As

detailed above, Defendants’ understanding is inaccurate, and Plaintiffs’ standing does not

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necessarily rise or fall based on the applicability of the nine-month deadline. 3 Accordingly, the

court finds that Plaintiffs have standing to bring claims under the APA or Mandamus Act.

B. Sufficiency of Plaintiffs’ Cause of Action

Defendants argue that Plaintiffs have failed to state claims under the Declaratory

Judgment Act, the APA, and the Mandamus Act because Congress has not mandated the nine-

month deadline. (Defs.’ Mot. to Dismiss at 32–35.) This argument is unavailing.

It is true that if the nine-month deadline were mandatory, any delay beyond that time

would likely be per se unreasonable. However, even if the nine-month deadline is not

mandatory, that does not preclude Plaintiffs from using it as a benchmark to assess whether the

current delays are unreasonable in light of Congress’s stated intention to “improve the efficiency

by which applications for special immigrant visas . . . are processed.” RCIA § 1242(c)(1);

AAPA § 602(b)(4)(A). Moreover, Defendants’ invocation of the provision permitting the

government to take additional time to process requests for visas in “high-risk cases” where there

are “national security concerns,” does not help their position. RCIA § 1242(c)(2); AAPA

§ 602(b)(4)(B). That provision appears to carve out an exception to the nine-month deadline,

and the government does not argue that that exception applies here. Thus, Defendants’ motion to

dismiss for failure to state a claim is without merit.

3
At least one court in this district has held that, with respect to all fourteen steps, “the APA, 5
U.S.C. § 555 (b), creates a duty for the Government to reach a final decision on Plaintiffs’
applications ‘within a reasonable period,’ and RCIA § 1242(c)(1) and AAPA § 602(4)(A) clarify
that duty is non-discretionary and must ‘ordinarily’ be completed within nine months.” Nine
Iraqi Allies, 168 F. Supp. 3d at 282. In addition, in the FOIA context, another court in this
district held that “the statute gives the State Department nine months to adjudicate SIV
applications, a timeline which includes all steps incidental to the issuance of [SIV] visas,
including . . . COM approval.” Airaj v. United States, No.15-cv-983 (ESH), 2016 WL 1698260,
at *9 (D.D.C. Apr. 27, 2016), aff’d sub nom. Airaj v. United States Dep’t of State, No. 16-5193,
2017 WL 2347794 (D.C. Cir. Mar. 30, 2017) (internal quotations omitted).

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 IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for partial dismissal of the Amended

Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is

hereby DENIED.

An appropriate Order accompanies this Memorandum Opinion.

Date: January 30, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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