Ghulam Dastagir v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NAHID GHULAM DASTAGIR,

Plaintiff,

v. Case No. 1:20-cv-02286 (TNM)

ANTONY BLINKEN 1, in his official
capacity as U.S. Secretary of State, et al.,

Defendants.

MEMORANDUM OPINION

Nahid Ghulam Dastagir wants her foreign national husband to join her in the United

States. She filed a visa application on his behalf five years ago, and he received an interview

with the U.S. embassy in Moscow (“Moscow Embassy”) in 2018. The application has since

languished in “administrative processing” awaiting adjudication. Frustrated, Dastagir sues

various federal officials (collectively, the “Government”). She seeks an order compelling the

Government to act on the application. The Government moves to dismiss the petition and

Dastagir seeks partial summary judgment. Because there has been no unreasonable delay with

Dastagir’s visa application, the Court will grant the Government’s motion.

I.

A U.S. citizen seeking to bring a foreign national spouse to the United States must file a

Form I-130—a Petition for Alien Relative—with the United States Citizenship and Immigration

Services (“USCIS”). See 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1). If USCIS approves the

1
Under Rule 25(d) of the Federal Rules of Civil Procedure, Antony J. Blinken substitutes for
Michael R. Pompeo as Defendant in this suit.
petition, it sends the application to the State Department’s processing center. See 8 C.F.R.

§ 204.2(a)(3). The foreign spouse then submits another application and appears for an interview

at the embassy with jurisdiction over the foreign spouse’s residence. 22 C.F.R. § 42.62. After

the interview, “the consular office must [either] issue [or] refuse the visa.” Id. § 42.81(a).

In January 2016, U.S. citizen Dastagir filed a Form I-130 on behalf of her husband, who

apparently lives in Russia. Pet. for Writ of Mandamus (“Pet.”) ¶¶ 5, 13, ECF No. 1. 2 USCIS

approved the application the same year. Id. ¶ 12. A consular officer at the Moscow Embassy

then interviewed Dastagir’s husband in March 2018. Id. ¶ 14. The officer allegedly informed

Dastagir’s husband that the visa application was being placed in “administrative processing.” Id.

¶ 15. And it has remained there since. Id. ¶ 16. Meanwhile, a consular officer has re-

interviewed Dastagir’s husband. See Defs.’ Mot. Extension of Time at 1, ECF No. 6. Dastagir

claims that the Government’s “failure to adjudicate this visa application has had a profound and

negative impact on the lives of [her] and her husband.” Pet. ¶ 17.

In March 2020, the State Department suspended visa services in all U.S. embassies and

consulates around the world in response to the COVID-19 pandemic. 3 See U.S. Dep’t of State,

Bureau of Consular Affairs, Important Announcement on H2 Visas (Mar. 26, 2020),

https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-

visas.html. A “phased resumption of visa services” started four months later on a post-by-post

basis as “local conditions and resources allow[ed].” U.S. Dep’t of State, Bureau of Consular

2
All page citations refer to the page numbers that the CM/ECF system generates.
3
The Court takes judicial notice of information posted on official government websites without
transforming the Government’s motion into one for summary judgment. Accord Pharm.
Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C.
2014) (“Courts in this jurisdiction have frequently taken judicial notice of information posted on
official public websites of government agencies.”).

2
Affairs, Suspension of Routine Visa Servs. (July 22, 2020),

https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-

services.html. Visa services are currently suspended in Russia over a hiring ban imposed by the

Russian government. See U.S. Embassy & Consulates in Russia,

https://ru.usembassy.gov/message-to-u-s-citizens-u-s-mission-russia-reduction-of-consular-

services/. Right now, the Moscow Embassy can only process immigrant visas in “life-or-death

emergencies” or “age-out cases.” See U.S. Embassy & Consulates in Russia,

https://ru.usembassy.gov/visas/. The State Department is “currently making arrangements for

alternate processing locations for immigrant visa applicants who do not meet these criteria.” Id.

Dastagir petitioned for writ of mandamus seeking to compel the Government to act on

her visa application. She sues under the Administrative Procedure Act (“APA”) and Mandamus

Act, claiming that the Government is “unlawfully withholding or unreasonably delaying action

on [her] husband’s visa application.” Pet. ¶ 18; see also id. ¶¶ 18–34. She also raises a claim

involving the Controlled Application Review and Resolution Program (“CARRP”)—an internal

policy used to “investigate and adjudicate applications deemed to present potential ‘national

security concerns.’” Id. ¶ 37. Dastagir alleges that “on information and belief” the Government

is “intentionally delaying this immigration case because of an application of” CARRP. Id. ¶ 39.

The Government moves to dismiss the petition. And Dastagir seeks summary judgment

on her APA and Mandamus Act claims. Both motions are ripe for disposition. 4

4
The Court has subject matter jurisdiction under 28 U.S.C. § 1331. The Court denies Dastagir’s
request for oral argument on her motion because one is unnecessary. See LCvR 7(f).

3
 II.

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The plaintiff must plead

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

for the misconduct alleged.” Id. In considering a motion to dismiss, the Court “treat[s] the

complaint’s factual allegations as true and must grant the plaintiff the benefit of all inferences

that can be derived from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir.

2017) (cleaned up). The Court, however, need not credit legal conclusions couched as factual

allegations. Iqbal, 556 U.S. at 678. And it can “consider only the facts alleged in the complaint,

any documents either attached to or incorporated in the complaint and matters of which [it] may

take judicial notice.” Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (cleaned up).

III.

Dastagir’s three claims rest on the same theory: that the Government unreasonably

delayed adjudication of her husband’s visa application. See Pet. ¶¶ 18, 28, 32, 39. So the Court

starts there. If there was no unreasonable delay, Dastagir’s claims fail and the Government’s

remaining arguments for dismissal fall away. 5

The APA “imposes a general but nondiscretionary duty upon an administrative agency to

pass upon a matter presented to it ‘within a reasonable time,’ and authorizes a reviewing court to

‘compel agency action unlawfully withheld or unreasonably delayed.’” Mashpee Wampanoag

5
Dastagir asks the Court to deny the motion to dismiss because the Government filed no
certified list of the contents of the administrative record under Local Civil Rule 7(n)(1). See
Mem. of P. & A. in Opp’n to Defs.’ Mot. Dismiss at 7, ECF No. 15. The Court rejects this
argument. This local rule does not apply because, as Dastagir makes clear, she “is challenging
the [Government’s] inaction on the immigrant visa application.” Id. at 6. “[I]f any agency fails
to act, there is no ‘administrative record’ for a federal court to review.” Nat’l Law Ctr. on
Homeless. & Poverty v. U.S. Dep’t of Vets. Affs., 842 F. Supp. 2d 127, 130 (D.D.C. 2012).

4
Tribe Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C.

§§ 555(b), 706(1)). The “standard for undue delay under the Mandamus Act . . . is identical to

the APA standard.” Kangarloo v. Pompeo, 480 F. Supp. 3d 134, 142 (D.D.C. 2020).

“There is no per se rule as to how long is too long to wait for agency action.” In re Am.

Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004). To evaluate an unreasonable

delay claim, courts apply six factors (“TRAC Factors”):

1. the time agencies take to make decisions must be governed by a rule of reason;

2. when Congress has provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason;

3. delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake;

4. the effect of expediting delayed action on agency activities of a higher or
competing priority;

5. the nature and extent of the interests prejudiced by delay; and

6. the court need not find any impropriety lurking behind agency lassitude in order
to hold that agency action is unreasonably delayed.

Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”) (cleaned

up). These factors are not “ironclad” but offer “useful guidance.” Id. Addressing an

unreasonable delay claim is “ordinarily a complicated and nuanced task requiring consideration

of particular facts and circumstances before the court.” Mashpee, 336 F.3d at 1100.

As we will see, the TRAC factors favor the Government here. There is no deadline by

which the Government must adjudicate Dastagir’s visa application and other courts have found

similar wait times not unreasonable. More importantly, granting Dastagir relief would allow her

to jump ahead of others with no net benefit to anyone but her. While Dastagir and her family

5
may have experienced hardship during the wait, so too have all applicants whose cases are

likewise delayed.

A.

Courts typically consider TRAC factors one and two together. Accord Milligan v.

Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020). The first has been called the “most

important.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). It asks “whether

the agency’s response time . . . is governed by an identifiable rationale.” Ctr. for Sci. in the Pub.

Int. v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C. 2014). And the second—whether Congress has

provided a timetable—“may supply content for th[e] rule of reason.” TRAC, 750 F.2d at 80.

Both factors strongly favor the Government here.

The parties agree that there is no deadline for the Moscow Embassy to adjudicate

Dastagir’s visa application. See Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 15, ECF No. 14; Mem.

of P. & A. in Opp’n Defs.’ Mot. Dismiss (“Pl.’s Opp’n”) at 11, ECF No. 15. Instead, “Congress

has given the agencies wide discretion in the area of immigration processing.” Slalka v. Kelly,

246 F. Supp. 3d 147, 153–54 (D.D.C. 2017) (noting two-year delays in immigration visa

processing “do[] not typically require judicial intervention”). “Decisions regarding the

admission of foreign nationals are granted an especially wide degree of deference, as they

frequently implicate ‘relations with foreign powers, or involve classifications defined in the light

of changing political and economic circumstances.’” Didban v. Pompeo, 435 F. Supp. 3d 168,

176 (D.D.C. 2020) (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018)).

With no set timeline, the Court looks to case law for guidance. Accord Sarlak v. Pompeo,

No. 20-0035 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020) (“Absent a

congressionally supplied yardstick, courts typically turn to case law as a guide.”). And “[c]ourts

6
have regularly found that a waiting time like [Dastagir’s] is not unreasonable.” Palakuru v.

Renaud, --- F. Supp. 3d ---, 2021 WL 674162, at *5 (D.D.C. Feb. 22, 2021) (citing cases). In

Zandieh v. Pompeo, for example, another judge in this district held that a 29-month delay was

not unreasonable. No. 20-919 (JEB), 2020 WL 4346915, at *5–7 (D.D.C. July 29, 2020); see

also Mirbaha v. Pompeo, --- F. Supp. 3d ---, 2021 WL 184393, at *5 (D.D.C. Jan. 19, 2021)

(holding 27-month delay not unreasonable).

So too here. The Moscow Embassy placed the visa application in “administrative

processing” in March 2018. See Pet. ¶ 15. So it was pending about 29 months when Dastagir

sued. Even if the Court started the clock when Dastagir filed the petition five years ago, “several

of this district’s courts have noted that delays between three to five years are often not

unreasonable.” Mirbaha, --- F. Supp. 3d ---, 2021 WL 184393, at *5. And the Government has

taken some action on the application since 2018, re-interviewing Dastagir last year. See Defs.’

Mot. Extension of Time at 1. This waiting period stretches but does not exceed the boundaries

of reasonableness under the case law in this district.

More, whether a rule of reason exists “cannot be decided in the abstract.” Mashpee, 336

F.3d at 1102. It is highly relevant that the Moscow Embassy closed during some of this waiting

period due to COVID-19. U.S. Dep’t of State, Bureau of Consular Affairs, Important

Announcement on H2 Visas (Mar. 26, 2020),

https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-

visas.html. And now, the Moscow Embassy can process only a “very limited number of

immigrant visa applications” in “life-or-death emergencies, and age-out cases” because it can no

longer employ foreign nationals in any capacity. U.S. Embassy & Consulates in Russia, Visas,

https://ru.usembassy.gov/visas/. Issues like a pandemic and local government restrictions are out

7
of the control of the Government and are justifications for delay that the Court is ill-equipped to

second guess. These circumstances offer sufficient “rhyme [and] reason” to explain the

Government’s response time. Ctr. for Sci. in the Pub. Int., 74 F. Supp. 3d at 300.

Dastagir agrees that “there is no statutory or regulatory timeframe” that applies to her

visa application. Pl.’s Opp’n at 11. But she cites 8 U.S.C. § 1571(b), which says that “[i]t is the

sense of Congress that the processing of any immigration benefit application should be

completed not later than 180 days after the initial filing of the application.” Dastagir notes that

“[s]ignificantly more than 180 days have passed since [her] initial visa application.” Pl.’s Opp’n

at 11.

True. But “[s]everal courts, including the D.C. Circuit, have recognized that a sense of

Congress resolution is not law.” Palakuru, --- F. Supp. 3d ---, 2021 WL 674162, at *4 (citing

cases). “The Court is inclined to agree with the Government that the precatory ‘sense of

congress’ language in 8 U.S.C. § 1571(b) is best interpreted as nonbinding.” Id. Even so, 8

U.S.C. § 1571(b) would not change the Court’s rule-of-reason analysis. “And the TRAC factors

on the whole—particularly the first factor and the fourth factor (discussed below)—would still

decisively favor the Government.” Id.

Dastagir also tries to distinguish her case. She argues that other decisions rejecting

unreasonable delay challenges are different because they involved “complex, fact-intensive

determinations” not relevant here. Pl.’s Opp’n at 11. And “[a]djudicating immigrant visa

applications is much more straightforward than these adjudications.” Id. at 12. She cites a

Notice of Proposed Rulemaking from USCIS, which estimates that a different visa application,

the Form I-485, takes 1.63 hours to adjudicate. Id. According to Dastagir, “it is reasonable to

8
conclude that an immigrant visa application should take approximately the same amount of time”

because the “eligibility requirements are very similar.” Id. The Court is unconvinced.

For starters, USCIS is no longer involved with Dastagir’s application. See Pet. ¶ 1

(“Defendant USCIS already approved the Form I-130 petition[.]”). So its estimates are not the

appropriate goalpost to use. As Dastagir acknowledges, the State Department—the agency

responsible for adjudicating the application—“has not published similar statistics.” Pl.’s Opp’n

at 12.

Even if the Court assumed it took only 1.63 hours to adjudicate her visa application, that

does not help Dastagir. The Government does not argue that the application is complex or time-

consuming to justify Dastagir’s wait time. It instead notes the “volume of visa applicants, the

impacts of COVID-19, and now suspension of visa services due to local conditions” at the

Moscow Embassy. Defs.’ Combined Reply in Supp. Mot. Dismiss at 9, ECF No. 17. It is

irrelevant then that Dastagir’s case is “straightforward.” Even something as simple as buying a

concert ticket can take hours if hundreds of other fans are ahead of you in line.

Dastagir next challenges the Government’s reliance on its COVID-19 precautions to

defend the delay. See Pl.’s Opp’n at 13. She points out that her husband’s last interview

occurred during the pandemic, which she claims “is at odds with [the Government’s]

explanation.” Id.

The Court disagrees. The Government does not represent that no visa processing has

occurred. Recall that the Government started a phased resumption of visa services around July

2020—a few months before her husband’s second interview. See U.S. Dep’t of State, Bureau of

Consular Affairs, Suspension of Routine Visa Servs. (July 22, 2020),

https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-

9
services.html. The issue, though, is the slowdown that resulted from these COVID-19

precautions and local restrictions currently in place at the Moscow Embassy. It is not

inconsistent for the Government to interview Dastagir’s husband and claim a backlog of cases.

The Court thus finds that the first and second TRAC factors favor the Government.

B.

Next, the Court considers the fourth TRAC factor, or “the effect of expediting delayed

action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. “This

factor carries the greatest weight in many cases[.]” Milligan, 502 F. Supp. at 319. Under this

factor, the Court may deny relief “where a judicial order putting [Dastagir] at the head of the

queue [would] simply move[] all others back one space and produce[] no net gain.” Mashpee,

336 F.3d at 1100 (cleaned up).

Dastagir asks for just that. She seeks an order compelling the Government to adjudicate

her husband’s visa application within 15 days “or as soon as reasonably possible.” Pet. at 12; see

also id. ¶¶ 18, 34. This relief, though, would permit Dastagir to jump the line and “simply

move[] all others back one space and produce[] no net gain.” Mashpee, 336 F.3d at 1100

(cleaned up). “While the effect of an individual case would be minimal, an accumulation of such

individual cases being pushed by judicial fiat to the front of the line would erode the ability of

agencies to determine their priorities.” Tate v. Pompeo, --- F. Supp. 3d ---, 2021 WL 148394, at

*11 (D.D.C. Jan. 16, 2021). Federal agencies, not the Court, are best positioned to manage the

backlog of immigration cases. Cf. In re Barr Lab’ys, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991)

(“Such budget flexibility as Congress has allowed is not for us to hijack.”).

Dastagir says that asking the Government “to issue a visa within three years is not

unreasonable and would have a minimal impact on other agency activities.” Pl.’s Opp’n at 13.

10
But Dastagir misses the forest for the trees. An order requiring adjudication of her visa

application necessarily reshuffles the queue of other applicants also waiting for adjudication of

their cases. Dastagir offers no reason why she should have “super-priority” over them. In re

Barr Laby’s, 930 F.2d at 75. There is no suggestion that the Government has treated her

differently than other applicants nor are there “unique considerations” that warrant line-jumping.

Accord Uranga v. U.S. Citizenship & Immigr. Servs., 490 F. Supp. 3d 86, 105 (D.D.C. 2020)

(“[I]t is notable that plaintiff does not point to any unique considerations that warrant an

expedited review of his [visa] petition; nor does he contend that the agency has treated him

unfairly, or differently[.]”). The Court “ha[s] no basis for reordering agency priorities.” In re

Barr Lab’ys, 930 F.2d at 76.

This is especially so given the local restrictions at the Moscow Embassy. The Moscow

Embassy can only process “life-or-death emergencies” or “age-out cases.” U.S. Embassy &

Consulates in Russia, Visas, https://ru.usembassy.gov/visas/. It has to “mak[e] arrangements for

alternate processing locations for immigrant visa applicants who do not meet these criteria.” Id.

The State Department and Moscow Embassy are “in a unique—and authoritative—position” to

respond to these circumstances. In re Barr Lab’ys, 930 F.2d at 76. The Court need not interfere.

This factor alone could doom Dastagir’s claims. See Mashpee, 336 F.3d at 1100. The

remaining TRAC factors, however, also support dismissal.

C.

The Court looks next at TRAC factors three and five, or “the interests prejudiced by

delay” including how delays affect “human health and welfare.” TRAC, 750 F.2d at 80.

Dastagir alleges that the delay “has had a profound and negative impact on the lives of [her] and

11
her husband.” Pet. ¶ 17; see also id. ¶ 1 (“[Dastagir] continues to suffer due to [her] ongoing

separation from her husband, with no apparent end in sight.”).

The Court sympathizes with Dastagir and her family’s difficulties. But she is not alone.

“While the Court does not doubt that [Dastagir] has an interest in prompt adjudication, so too do

many others facing similar circumstances.” Palakuru, --- F. Supp. 3d ---, 2021 WL 674162, at

*6. Catapulting Dastagir to the front of the line “direct[s] resources away from the adjudications

that the State Department has identified as more urgent.” Defs.’ Mot. at 20. Agencies, not this

Court, are in the best position to “allocate [their] resources in the optimal way.” In re Barr

Lab’ys, 930 F.2d at 76. These factors do not favor Dastagir.

Even if they did, they “would weigh only slightly in support of finding an unreasonable

delay.” Palakuru, --- F. Supp. 3d ---, 2021 WL 674162, at *6. They do not “overcome the other

factors that weigh strongly in the Government’s favor.” Id.

D.

Finally, the sixth TRAC factor is neutral. It reminds courts that they “need not find any

impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably

delayed.’” TRAC, 750 F.2d at 80. Dastagir admits that she asserts no bad faith here. 6 Pl.’s

Opp’n at 15.

6
The Court does not reach two of the Government’s arguments. First, the Government invokes
the consular nonreviewability doctrine. See Defs.’ Mot. at 11–14. This doctrine “shields a
consular official’s decision to issue or withhold a visa from judicial review unless Congress says
otherwise” or if one of “two narrow circumstances” applies. Baan Rao Thai Rest. v. Pompeo,
985 F.3d 1020, 1024 (D.C. Cir. 2021). But the Government offered no rebuttal to Dastagir’s
assertion that the doctrine does not apply because she “challenges inaction, as opposed to a
decision taken within the consul’s discretion.” Pl.’s Opp’n at 9 (quoting Moghaddam v. Pompeo,
424 F. Supp. 3d 104, 114 (D.D.C. 2020) (cleaned up)). In any event, “[d]ismissal based on
consular nonreviewability . . . is a merits disposition under Federal Rule of Civil Procedure
12(b)(6).” Baan Rao Thai Rest., 985 F.3d at 1027. So it is unnecessary to resolve this question
because the Court will dismiss the petition for failure to state a claim of unreasonable delay. For

12
 * * *

Dastagir’s unreasonable delay claims fail under the TRAC factors. Accord Didban, 435

F. Supp. 3d at 177 (“Because Plaintiffs have failed to establish an undue delay, their claim for

mandamus relief under 28 U.S.C. § 1361 necessarily fails as well.”). 7 The Court does not doubt

that the waiting time has impacted Dastagir and her family. But “delays stemming from

resource-allocation decisions simply do not lend themselves to judicial reordering of agency

priorities.” Milligan, 502 F. Supp. 3d at 319 (cleaned up). And Dastagir offers no basis for

judicial line-cutting those also waiting their turn.

IV.

For these reasons, the Court will grant Defendants’ motion to dismiss and deny Plaintiff’s

motion for partial summary judgment. A separate Order will issue.

2021.07.09
17:46:40 -04'00'
Dated: July 9, 2021 TREVOR N. McFADDEN, U.S.D.J.

the same reason, the Court need not address the Government’s argument that Dastagir
improperly named some federal officials as Defendants. See Defs.’ Mot. at 9–11.
7
Dastagir’s CARRP claim also hinges on unreasonable delay and thus fails here. See Pet. ¶ 39.
Even if it did not, it would not survive because Dastagir did not “set forth any factual allegations
to support” it. Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-00397 (ABJ), 2020 WL
1308376, at *6 (D.D.C. Mar. 19, 2020) (dismissing similar claim that “on information and belief
defendants [were] intentionally delaying” the visa application “pursuant to the CARRP program”
(cleaned up)).

13