Kussem v. Blinken

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
MOHAMED SALEH KUSSEM, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 21-cv-1441 (TSC)
)
ANTONY J. BLINKEN, in his official )
capacity as United States Secretary of State, )
et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiffs Mohamed Saleh Kussem (“Mohamed”), Nagib Mohamed Kussem (“Nagib”),

and Ali Mohamed Saleh Kasem (“Ali”) have sued U.S. Secretary of State Antony Blinken, U.S.

Attorney General Merrick Garland, Assistant Secretary of State for Consular Affairs Ian

Brownlee, U.S. Ambassador to Egypt Jonathan Cohen, and a John Doe Consular Officer from

the U.S. Embassy in Cairo, Egypt, all in their official capacity. Plaintiffs seek to immigrate to

the United States, and they allege that Defendants have failed to adjudicate Nagib’s and Ali’s

visa applications within a reasonable amount of time in violation of the Administrative

Procedure Act (“APA”). ECF No. 1, Compl. ¶¶ 1–3. Plaintiffs petition for a writ of mandamus

to compel Defendants to adjudicate their visa applications. Compl. ¶ 3. Defendants moved to

dismiss, ECF No. 4, Defs.’ Mot. to Dismiss, and for reasons explained below, the court will

GRANT Defendants’ motion.

I. BACKGROUND

Mohamed is a U.S. citizen residing in Kentucky. Compl. ¶ 4. His children, Nagib and

Ali, are citizens and residents of Yemen who seek to immigrate to the United States.
Compl. ¶¶ 5–6. On January 14, 2004, Nagib and Ali received approval of their I-130 Petitions

for Alien Relatives based on their relationships to Mohamed. Compl. ¶¶ 16–17. They applied

for immigrant visas in May 2015, after which their applications were transferred to various

consulates before reaching the U.S. Embassy in Cairo, Egypt. Compl. ¶¶ 1, 18. In March 2018,

they completed their immigrant visa interviews at the U.S. Embassy in Cairo, Egypt, but their

applications were subsequently denied under Presidential Proclamation 9645. Compl. ¶¶ 19–21.

Then-President Trump issued Presidential Proclamation 9645 on September 24, 2017,

banning citizens of seven countries, including Yemen, from entering the United States. See

Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United

States by Terrorists or Other Public Safety Threats, 82 Fed. Reg. 45,161 (Sept. 24, 2017). The

Proclamation established a case-by-case waiver system under which “consular officers may grant

waivers to a foreign national” if the foreign national demonstrates that denial would result in

undue hardship, entry would not pose a threat, and entry would be in the national interest.

Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91 (D.D.C. 2020); 82 Fed. Reg. 45,161, 45,168. The

Proclamation was upheld by the Supreme Court in Trump v. Hawaii, 138 S. Ct. 2392, 2423

(2018).

In March 2020, due to the COVID-19 pandemic, the State Department suspended routine

visa services at all U.S. Embassies and Consulates. See Suspension of Routine Visa Services,

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

services.html (last updated July 22, 2020). As of November 19, 2021, the Bureau of Consular

Affairs was attempting to “reduc[e] wait times . . . while also protecting the health and safety

of . . . staff and applicants.” See Visa Services Operating Status Update,

https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-

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update.html (last updated Nov. 19, 2021). Local restrictions and conditions continue to limit

consular services and Embassies “have broad discretion to determine how to prioritize visa

appointments.” Id.

On January 20, 2021, President Biden signed Presidential Proclamation 10141, ending

the travel restrictions under Proclamation 9645. Compl. ¶ 22. On January 22, 2021, the State

Department issued guidance for immigrant visa applicants who were previously refused under

the Proclamation:

[I]mmigrant visa (IV) applicants who were previously refused due to either
[Proclamations] 9645 or 9983 and were determined not to qualify for a waiver
before January 20, 2020, may reapply for a visa by submitting a new visa
application (DS-260) and paying a new visa application processing fee. In the
alternative, IV applicants refused due to either [Proclamations] 9645 or 9983 who
were determined not to qualify for a waiver on or after January 20, 2020, may
request their local embassy or consulate to reconsider their case within one year of
the date of their waiver refusal without submitting a new application or paying a
new visa application processing fee, consistent with Department regulations. IV
applicants who were refused due to either [Proclamations] 9645 or 9983 and whose
eligibility for a waiver was still being evaluated as of January 20, 2021, will
continue to have their applications processed. Embassies and consulates are
prioritizing the adjudication of applications for those individuals who, as of January
20, 2021, were awaiting an outcome from the [Proclamations] 9645/9983 waiver
process.

Rescission of Presidential Proclamations 9645 and 9983, U.S. Dep’t State,

https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-

proclamations-9645-and-9983.html (last updated Mar. 10, 2021).

Plaintiffs allege that after President Biden rescinded Proclamation 9645 and the State

Department promulgated the subsequent guidance, Nagib and Ali “made numerous inquiries

with the U.S. Embassy in Cairo, Egypt to resume processing of their cases.” Compl. ¶ 23.

Plaintiffs do not say whether Nagib and Ali reapplied by submitting new visa applications after a

waiver qualification or requested reconsideration after a waiver denial as provided in the

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guidance. They only allege that since they made “numerous inquiries,” “Defendants have yet to

resume processing” their visa applications. Id. ¶ 24. In May 2021, approximately four months

after President Biden rescinded Proclamation 9645, Plaintiffs brought this action, alleging that

Defendants unreasonably delayed processing and adjudication of Nagib’s and Ali’s visa

applications for over six years, causing them to endure financial, emotional, and familial

hardships. Id. ¶¶ 25, 29, 37.

Specifically, Plaintiffs argue that Defendants have a duty to adjudicate their applications

within a reasonable period of time and that by failing to do so, Defendants have violated the

APA. 5 U.S.C. § 555(b); 5 U.S.C. § 701 et seq. Plaintiffs also seek a writ of mandamus

compelling Defendants to either adjudicate Nagib’s and Ali’s applications or provide Plaintiffs

with a timeline by which adjudication will take place. Compl. ¶¶ 1–3, 14–15.

Defendants have moved to dismiss, arguing that the “delay” in adjudication—which they

define as the approximately four-month period between the recission of travel restrictions under

Proclamation 9645 and the date Plaintiffs filed this suit—is not unreasonable given the unique

difficulties faced by consular offices during the COVID-19 pandemic. Defs.’ Mot. to Dismiss at

2. In the alternative, Defendants argue that three Defendants—Attorney General Garland,

Secretary of State Blinken, and Assistant Secretary of State for Consular Affairs Brownlee—

should be dismissed because they have no role in adjudicating visa applications and therefore

could not provide the relief sought. Id. at 4–6.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal

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

complaint should state a “short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts to state a

claim that is plausible on its face by alleging facts that, if assumed to be true, would allow the

court to draw “reasonable inference[s] that the defendant is liable for the misconduct

alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Arpaio v. Obama, 797 F.3d

11, 19 (D.C. Cir. 2015); Ashcroft v. Iqbal, 556 U.S. 662, 663, 677–78 (2009). The court

presumes the truth of a plaintiff’s factual allegations, see Iqbal, 556 U.S. at 679, and construes

the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can

be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir.

2012) (internal quotation marks omitted) (citation omitted).

III. ANALYSIS

A. APA Claim

The APA requires that “within a reasonable time, each agency shall proceed to conclude

a matter presented to it” and permits a reviewing court to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1). A court evaluating a claim of

unreasonable delay must “consider whether the agency’s failure to respond is ‘so egregious’ as to

warrant relief.” Tate v. Pompeo, 513 F. Supp. 3d 132, 147 (D.D.C. 2021) (quoting Telecomms.

Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir. 1984)).

Before the court can analyze the unreasonableness of the alleged delay, it must first

resolve the parties’ dispute about the length of time that has elapsed. Plaintiffs contend that the

court’s analysis should start at May 2015, when Nagib and Ali first applied for visas. Compl. ¶¶

1, 18–25. This proposed start date, however, ignores the fact that Nagib’s and Ali’s 2015

applications have already been adjudicated. According to Plaintiffs, in March 2018, a “John

Doe” Consular Officer at the U.S. Embassy in Cairo interviewed both Nagib and Ali and

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subsequently notified them that their applications were “refused under then existing

Proclamation 9645.” Id. ¶ 21. Plaintiffs do not assert that those denials were unlawful at the

time they were issued. Id.

In analogous cases, courts in this jurisdiction have held that the “unreasonable delay”

clock begins to run once a visa applicant has requested a waiver after application denial under

Proclamation 9645. See Mirbaha v. Pompeo, 513 F. Supp. 3d 179, 182 (D.D.C. 2021)

(determining that the clock began to run for an applicant’s APA and mandamus claims once he

submitted a waiver); Kangarloo v. Pompeo, 480 F. Supp. 3d 134, 141 (D.D.C. 2020) (deciding

the clock began to run once a waiver request was submitted). Because the government

adjudicated Nagib’s and Ali’s 2015 visa applications in March 2018, the court will not factor in

the time before the denial under Proclamation 9645 in determining whether the delay is

unreasonable. Instead, the relevant time period begins when Plaintiffs requested a waiver.

Plaintiffs allege that after Proclamation 9645 was rescinded and the State Department’s

issued subsequent guidance, Plaintiffs made “numerous inquiries” regarding their applications.

See Compl. ¶ 23. They do not say when, or how they made those inquiries. For purposes of the

motion to dismiss, the court will draw a reasonable inference in Plaintiffs’ favor and assume that

their “numerous inquiries” included the necessary waiver request under the State Department’s

January 2021 guidance. The court will also assume—for purposes of the motion to dismiss—

that Plaintiffs sent their waiver requests soon after the State Department announced the policy

change, as early as January 2021.

Next, the court must determine when the delay clock stops. In analogous cases, courts

have considered that the “delay” timeframe runs until the court issues its opinion. See, e.g.,

Mahmood v. U.S. Dep’t of Homeland Sec., No. CV 21-1262 (RC), 2021 WL 5998385, at *6–7

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(D.D.C. Dec. 20, 2021) (analyzing twenty-five month delay reflecting time between USCIS’s

last action and the issuance of the court’s opinion) (citing Brzezinski v. U.S. Dep’t of Homeland

Sec., No. CV 21-376 (RC), 2021 WL 4191958, at *4 n.3 (D.D.C. Sept. 15, 2021) (analyzing

seventeen-month delay corresponding to time between “the last Government action” and the

opinion’s issuance)). Accordingly, the court finds that the relevant timeframe is the thirteen-

month period between the end of January 2021, when the court will assume Plaintiffs began

making their “numerous inquiries” to the U.S. Embassy in Cairo, and the issuance of the court’s

opinion today.

In determining whether agency action has been unreasonably delayed, the D.C. Circuit

analyzes six factors from TRAC, 750 F.2d at 80 (citations omitted):

(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;

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

(4) the court should consider the effect of expediting delayed action on agency activities
of a higher or competing priority;

(5) the court should also consider 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.’”

TRAC, 750 F.2d at 80.

1. Factors One and Two

The first TRAC factor is the “most important” and “carries the most weight.” See In re

Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008); Mahmood, 2021 WL 5998385, at *7

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(citation omitted). The second TRAC factor “provides that the content of such a rule [of reason]

may be found in a ‘timetable or other indication . . . in the enabling statute.’” Ctr. for Sci. in the

Pub. Int. v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C. 2014) (quoting TRAC, 750 F.2d at 80). The

first two factors are “typically consider[ed]” together because they both analyze whether there is

“sufficient ‘rhyme [and] reason’” in explaining the agency response time. Dastagir v. Blinken,

No. 1:20-CV-02286 (TNM), 2021 WL 2894645, at *3–4 (D.D.C. July 9, 2021) (quoting Ctr. for

Sci. in the Pub. Int., 74 F. Supp. 3d at 300).

With regard to the first two factors, Congress has not provided a statutory or regulatory

timeframe in which to adjudicate visa applications, instead giving agencies “wide discretion in

the area of immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C.

2017) (citations omitted). “Absent a congressionally supplied yardstick, courts typically turn to

case law as a guide.” Sarlak v. Pompeo, No. CV 20-35 (BAH), 2020 WL 3082018, at *6

(D.D.C. June 10, 2020) (citation omitted). As established above, the delay for adjudication in

this case was approximately thirteen months from the time Plaintiffs began making “numerous

inquiries” about their previously denied applications until today’s opinion.

Given the “significant national security interests involved in assessing waiver

applications and the compelling governmental interest in allowing the agency to balance its

competing priorities as it sees fit,” a thirteen-month delay is not unreasonable. See Didban v.

Pompeo, 435 F. Supp. 3d 168, 177 (D.D.C. 2020) (holding a two-year delay in adjudicating visa

waiver eligibility is not unreasonable); Bagherian, 442 F. Supp. 3d at 96 (same but twenty-five-

month delay); Skalka, 246 F. Supp. 3d at 153–54 (stating that a two-year processing delay “does

not typically require judicial intervention”); Ghadami v. U.S. Dep’t of Homeland Sec., No. CV

19-00397 (ABJ), 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020) (finding that “it would be out

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of step with the weight of decisions across the country if it drew the line for APA purposes at

twenty-five months”). As a starting point, this case law weighs in Defendants’ favor.

However, “[w]hether a ‘rule of reason’ exists for agency action ‘cannot be decided in the

abstract, by reference to some number of months or years beyond which agency inaction is

presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at

hand, the significance (and permanence) of the outcome, and the resources available to the

agency.” Tate, 513 F. Supp. 3d at 148 (quoting Mashpee Wampanoag Tribal Council, Inc. v.

Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)). Here, Plaintiffs’ factual allegations regarding

the State Department’s processing of Nagib and Ali’s applications do not establish a “transparent

violation[ ] of a clear duty to act[,]” In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir.

2000), or delay “so egregious as to warrant mandamus[,]” Core Commc’ns, Inc., 531 F.3d at 855.

Defendants also argue that the reasonableness of any delays is further supported by the COVID-

19 pandemic, which has forced embassies and consulates to operate at reduced capacity to ensure

the safety of U.S. officials. Defs.’ Mot. to Dismiss at 2–3. As such, the first and second TRAC

factors weigh in Defendants’ favor. See Ctr. for Sci. in the Pub. Interest, 74 F. Supp. 3d at 300

(finding that the first two TRAC factors weighed in the defendants’ favor where the challenged

processing timeline was subject to an “identifiable rationale”).

2. Factors Three and Five

The third and fifth TRAC factors—whether health and welfare are at stake and the nature

of the interests prejudiced by the delay—are typically analyzed together and weigh in Plaintiffs’

favor. Nagib and Ali allege that they have endured “significant financial, emotional, . . .

familial,” and medical hardships as a result of the delay in adjudication. Compl. ¶ 29; ECF No.

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5, Pls.’ Opp’n at 14. They have also been separated from their father in a country that has been

experiencing a humanitarian crisis for the last several years. Compl. ¶ 2.

Defendants recognize the processing delay has “profoundly impacted the lives of

Plaintiffs and their family,” but argue that visa application processing and adjudication has

generally been delayed to “prevent the spread of COVID-19 and protect the safety of U.S.

officials.” Defs.’ Mot. to Dismiss at 11–12. Defendants do not specifically explain how State

Department policies regarding COVID-19 safety have impacted conditions at the U.S. Embassy

in Cairo such that it would have been unable to process and adjudicate Plaintiffs’ requests.

When weighing Defendants’ concerns—made only in the abstract—against Plaintiffs’ alleged

harms, which this court must accept as true, the court finds that factors three and five weigh in

Plaintiffs’ favor.

3. Factor Four

The fourth TRAC factor considers the effect that expediting action on Plaintiffs’ visa

applications would have on other agency activities of higher or competing priority. This factor

weighs in Defendants’ favor. Defendants argue that requiring immediate adjudication of the

Plaintiffs’ visas would “simply ‘reorder’ a queue of applicants seeking adjudication.” Tate, 513

F. Supp. 3d at 149 (quoting Sarlak, 2020 WL 3082018, at *6) (citation omitted). In response,

Plaintiffs argue that Defendants have not provided any data as to where Plaintiffs fall in the

queue and that their applications may already be at the front. Pls.’ Opp’n at 15.

Even if Plaintiffs are near the front of the queue, “a judicial order putting [Plaintiffs] at

the head of the queue simply moves all others back one space and produces no net gain.” In re

Barr Labs, 930 F.2d 72, 75 (D.C. Cir. 1991). “While the effect of an individual case would be

minimal, the accumulation of such individual cases being pushed by judicial fiat to the front of

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the line would erode the ability of agencies to determine their priorities.” Tate, 513 F. Supp. 3d

at 150. Filing a federal lawsuit alone “should not give . . . any advantage.” Gong v. Duke, 282

F. Supp. 3d 566, 569 (E.D.N.Y. 2017).

4. Factor Six

The sixth and final TRAC factor concerns whether there is impropriety behind the agency

delay. The court “need not find impropriety to hold the agency action is unreasonable.” TRAC,

750 F.2d at 80.

Plaintiffs have not alleged any impropriety, and a “mere . . . delay is insufficient to show

impropriety.” See Chowdhury v. Blinken, No. 1:21-CV-1205-RCL, 2022 WL 136795, at *5

(D.D.C. Jan. 14, 2022). Defendants deny that they have engaged in any impropriety, and instead

contend that the delay is the natural consequence of work limitations “caused by the pandemic

and the plethora of applications seeking visas.” Defs.’ Mot. to Dismiss at 13. Nonetheless,

Defendants suggest that they could be “more forthcoming with information regarding the

Application and its status.” Id. Because Plaintiffs have not alleged bad faith, and because

Defendants offer reasonable explanations for their actions, the court finds that this factor weighs

in Defendants’ favor.

Ultimately, upon consideration of all the TRAC factors, the court finds that Plaintiffs have

not alleged sufficient facts to show that Defendants unreasonably delayed agency action, and

therefore will grants Defendants’ motion to dismiss Plaintiffs’ APA claim.

B. Mandamus Claim

Mandamus relief is proper only if: “(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to

plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292

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F.3d 781, 784 (D.C. Cir. 2002)). Plaintiffs’ APA and mandamus claims are derived from the

same theory—that Defendants unreasonably delayed the adjudication of Nagib’s and Ali’s visas.

Accordingly, the same TRAC-factor analysis applies to both claims. See Tate, 513 F. Supp. 3d at

148 n.7; see also Skalka, 246 F. Supp. 3d at 152 (“The standard by which a court reviews . . .

agency inaction is the same under . . . the APA and the Mandamus Act.”). Because Plaintiffs fail

to establish a valid claim for unreasonable delay under the APA, their claim for writ of

mandamus—premised on the same theory of delay—also falls short of the 12(b)(6) bar. 1

IV. CONCLUSION

For the reasons explained above, the court will GRANT Defendants’ motion to dismiss.

Date: March 7, 2022

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

1
Because the court will dismiss Plaintiffs’ lawsuit for failure to state a valid claim for relief, the
court need not address Defendants’ alternative argument that the court lacks subject matter
jurisdiction over three of the Defendants.

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