Rashidian v. Garland

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PARASTOO RASHIDIAN, et al.,

Plaintiffs,

v. Civil Action No. 1:23-1187 (ACR)

MERRICK GARLAND, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Negin Khosravaninezhad and Soroodeh Khalili are Iranian citizens who, in

2022, applied for nonimmigrant visas to travel to the United States.1 To date, officials at the

U.S. Consulate in Dubai have not issued final decisions on their applications. Like many other

visa applicants in recent years, Plaintiffs have sued an array of federal officials, including

Secretary of State Anthony Blinken and various consular officers, seeking an order requiring

prompt adjudication of their applications. Although the Court sympathizes with Plaintiffs’

situation, their Complaint does not state any plausible claims. The Court therefore dismisses this

case without prejudice.

I. BACKGROUND

A. Legal Background

Foreign students “seek[ing] to enter the United States temporarily and solely for the

purpose of pursuing” “full course[s] of study” at U.S. educational institutions may apply for F-1

1
This case originally involved six plaintiffs. See Dkt. 1 ¶¶ 6-11. Since the Complaint’s filing,
the other four plaintiffs have voluntarily dismissed their claims. Dkts. 9, 12. The Court
therefore addresses only Khosravaninezhad’s and Khalili’s claims.
1
nonimmigrant visas. 8 U.S.C. § 1101(a)(15)(F)(i). Their spouses and minor children may apply

for F-2 visas to join them in the United States. Id. § 1101(a)(15)(F)(ii). Subject to exceptions

not applicable here, each F-visa applicant must undergo an in-person interview with a consular

officer. Id. § 1202(h).

Upon receiving a completed application, a consular officer “must” either “issue the visa”

or “refuse the visa.”2 22 C.F.R. § 41.121(a). If the consular officer determines that he needs

additional information to determine the applicant’s eligibility, he may, “in accordance with

[State] Department procedures,” refuse the visa pending “further administrative processing.”

Administrative Processing Information, U.S. Dep’t of State, https://travel.state.gov/content/

travel/en/us-visas/visa-information-resources/administrative-processing-information.html

[https://perma.cc/5KN2-6X7U].

Plaintiffs face an additional hurdle because of their Iranian citizenship. Under 8 U.S.C.

§ 1735, “[n]o nonimmigrant visa,” including an F visa, “shall be issued to any alien from a

country that is a state sponsor of international terrorism”—a designation that Iran has held since

1984—“unless the Secretary of State determines, in consultation with the Attorney General and

the heads of other appropriate . . . agencies, that such alien does not pose a threat to the safety or

national security of the United States.” 8 U.S.C. § 1735(a); see State Sponsors of Terrorism,

U.S. Dep’t of State, https://www.state.gov/state-sponsors-of-terrorism [https://perma.cc/94QQ-

E6RB].

2
The consular officer must instead “discontinue granting the visa” if the applicant’s country is
subject to visa sanctions under 8 U.S.C. § 1253(d). 22 C.F.R. § 41.121(a). No party argues that
such sanctions apply here. See Dkt. 5 at 18-19 (discussing 22 C.F.R. § 41.121(a)).
2
 B. Factual and Procedural Background

The Court takes the facts from Plaintiffs’ Complaint. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).

Plaintiffs are both Iranian citizens who applied for F visas through the U.S. Consulate in

Dubai. Dkt. 1 (Compl.) ¶¶ 31, 33-34, 70. Plaintiff Khosravaninezhad applied for an F-1 visa in

June 2022 to enroll in an astrophysics Ph.D. program at the University of California, Riverside.

Id. ¶¶ 32-33. She appeared for an interview with a consular officer on June 6, 2022. Id. ¶ 34.

“[A]t the conclusion of her interview[,] she was given a []refusal notice for further administrative

processing.” Id. “On the same day, the [C]onsulate emailed [her] . . . a supplemental visa

questionnaire,” which she returned nine days later. Id. ¶ 35. Khosravaninezhad has not yet

received a final decision on her application and has “repeatedly” been told “that her case is still

pending . . . administrative processing.” Id. ¶¶ 36-37. She has “had to defer her [Ph.D. program]

start date” at least twice as a result, and she “risks losing her hard-earned admission,” as well as

the accompanying tuition waiver and living stipend, if she cannot secure a visa. Id. ¶¶ 40-41.

Plaintiff Khalili applied for an F-2 visa in September 2022 to join her husband, who has

an F-1 visa, in the United States. Id. ¶ 72. She appeared for a consular interview on September

26, 2022. Id. ¶ 73. Like Khosravaninezhad, she received “a []refusal notice for further

administrative processing” at “the conclusion of the interview,” id. ¶ 73, followed “[l]ater that

day” by “a supplemental visa questionnaire,” which she returned the next day, id. ¶ 74. Consular

officials have not yet issued a final decision on Khalili’s application and have responded to

multiple inquiries by her husband with “pro forma responses stating that her case is pending

further administrative processing.” Id. ¶¶ 75-76. In the meantime, “Khalili has been indefinitely

3
separated from her husband,” causing her “extreme emotional distress,” id. ¶ 77, and requiring

her to spend money “support[ing] two households,” id. ¶ 78.

Plaintiffs, together with four other Iranian F-visa applicants, sued Defendants Secretary

Blinken, Attorney General Merrick Garland, Secretary of Homeland Security Alejandro

Mayorkas, Assistant Secretary of State for Consular Affairs Rena Bitter, the Consul General of

the U.S. Consulate in Dubai, and ten unnamed consular officers at the U.S. Consulate in Dubai.

Id. ¶¶ 6-17. The Complaint asserts that Defendants have unreasonably delayed adjudication of

Plaintiffs’ visa applications. Id. ¶¶ 92-113. Citing both the Administrative Procedure Act (APA),

5 U.S.C. §§ 555(b), 706, and the Mandamus Act, 28 U.S.C. § 1361, Plaintiffs seek an order

compelling Defendants to render final decisions within fourteen days. Compl. at 28. They also

hint at a claim that Defendants “have engaged in a pattern and practice of unreasonable delay for

Iranian visa applicants,” purportedly in violation of the APA, id. ¶¶ 83, 105-07—though, as

discussed below, Plaintiffs appear to have abandoned this theory, see infra Section III.C.2.

The other four plaintiffs have since received decisions on their visa applications and

voluntarily dismissed their claims. Dkts. 9, 12. Defendants moved to dismiss the Complaint on

June 27, 2023. Dkt. 5 (Mot.).

II. LEGAL STANDARD

Defendants’ Motion seeks dismissal both under Federal Rule of Civil Procedure 12(b)(1)

for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim.

When a defendant moves to dismiss under Rule 12(b)(1), the plaintiff bears the burden of

establishing jurisdiction. E.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Where, as

here, “the defendant challenges only the legal sufficiency of the plaintiff’s jurisdictional

allegations,” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000),

4
the Court “assume[s] the truth of all material factual allegations in the complaint and construe[s]

the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived

from the facts alleged,” Am. Nat’l Ins. Co., 642 F.3d at 1139 (cleaned up).

To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

678 (cleaned up). To meet that standard, a plaintiff’s allegations must support a “reasonable

inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard

is not akin to a probability requirement, but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (cleaned up). “Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. (cleaned up).

III. ANALYSIS

Defendants raise a host of arguments for dismissal, many of which have already been

addressed repeatedly by courts in this District. See, e.g., Fakhimi v. Dep’t of State, No. 23-cv-

1127, 2023 WL 6976073 (D.D.C. Oct. 23, 2023) (dismissing suit by Iranian nationals seeking to

compel adjudication of F-visa applications); Rashidi v. U.S. Dep’t of State, No. 23-cv-1569,

2023 WL 6460030 (D.D.C. Oct. 4, 2023) (same); Khazaei v. Blinken, No. 23-cv-1419, 2023 WL

6065095 (D.D.C. Sept. 18, 2023) (same). Readers familiar with those decisions will not be

surprised that the Court largely rejects or bypasses Defendants’ non-merits arguments on

jurisdiction and reviewability but agrees that Plaintiffs’ claims fail on the merits.

A. Plaintiffs Have Standing to Sue Most Defendants

Defendants first argue that Plaintiffs lack Article III standing. Mot. at 8-14, 23-25. To

establish standing at this stage, “Plaintiffs must state a plausible claim that they have suffered an

5
injury in fact fairly traceable to [Defendants’] actions . . . that is likely to be redressed by a

favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913

(D.C. Cir. 2015) (cleaned up). Defendants make three arguments: First, that Plaintiffs have

suffered no injury in fact because visa-processing delay is a procedural injury that cannot confer

standing unless tied to some concrete interest, see Summers v. Earth Island Inst., 555 U.S. 488,

496-97 (2009), which Plaintiffs purportedly lack because they have no constitutional right to

enter the United States, Mot. at 8-13; see Trump v. Hawaii, 585 U.S. 667, 703 (2018). Second,

that Secretary Blinken, Attorney General Garland, and Secretary Mayorkas cannot redress

Plaintiffs’ injuries because they play no role in processing their applications. Mot. at 23-25.

And third, that Plaintiffs’ injuries are not redressable because no consular officer can grant them

visas until Secretary Blinken determines under § 1735 that they do not threaten the safety or

national security of the United States. Id. at 13-14. The Court agrees that Plaintiffs have not met

their burden to establish standing to sue Attorney General Garland or Secretary Mayorkas, but

otherwise finds Defendants’ standing objections unpersuasive.

Defendants’ first argument misses the mark because it unduly restricts the range of

concrete injuries that can confer standing. While Defendants are correct that Plaintiffs have no

constitutional right to enter this country, e.g., Trump, 585 U.S. at 703, concrete interests

sufficient to support standing are not limited to those “specified by the Constitution itself,”

TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). Rather, “monetary injury” and

“intangible harms . . . with a close relationship to harms traditionally recognized as providing a

basis for lawsuits in American courts” also suffice. Id. Plaintiffs amply allege such harms. Both

have identified monetary injuries: Khosravaninezhad has been unable to access her tuition

waiver and living stipend, Compl. ¶ 40, and Khalili has “suffered financially from . . . having to

6
support two households” while separated from her husband, id. ¶ 78. Each has also plausibly

alleged intangible, but still concrete, harms. Khosravaninezhad has “a concrete professional . . .

interest in earning an advanced degree.” Khazaei, 2023 WL 6065095, at *4 (cleaned up); see

Compl. ¶¶ 39-41. And Khalili “has suffered a concrete harm due to [her] separation from [her]

family in the United States.” Pourabdollah v. Blinken, No. 23-cv-1603, 2024 WL 474523, at *3

(D.D.C. Feb. 7, 2024); see Trump, 585 U.S. at 698 (recognizing standing based on separation

from family); Compl. ¶ 77. Plaintiffs thus satisfy the injury-in-fact requirement.

Defendants’ second argument is somewhat more successful, though it does not resolve

most of Plaintiffs’ claims. Defendants contend that Plaintiffs lack standing to sue Attorney

General Garland, Secretary Blinken, and Secretary Mayorkas because, they assert, none can

redress their injuries. Mot. at 23-25.

The Court disagrees as to Secretary Blinken. As numerous courts in this District have

explained, “[w]hile the Secretary of State has no legal authority to control which visa

applications consular officers grant or deny, nothing precludes him from directing them to decide

pending applications within a reasonable time.” Khazaei, 2023 WL 6065095, at *4; accord, e.g.,

Fakhimi, 2023 WL 6976073, at *4. And the Complaint specifically alleges that Secretary

Blinken “has supervisory control over” the relevant consular officers. Compl. ¶ 13. That is

enough to show redressability with respect to him.3

3
Defendants concede that the consular officers are proper defendants, Mot. at 25, and the Court
agrees. An order directing them, as the officials responsible for adjudicating Plaintiffs’
applications, to do so more quickly would redress Plaintiffs’ injuries. Defendants’ Motion does
not reference the other two defendants, Assistant Secretary Bitter and the Consul General of the
U.S. Consulate in Dubai. See Mot. at 23-25. Plaintiffs allege that both are responsible for
overseeing “consular activities,” Compl. ¶¶ 14, 16, and so the Court concludes that Plaintiffs
have standing to sue each for the same reasons as with Secretary Blinken, see Lee v. Blinken, No.
23-cv-1783, 2024 WL 639635, at *3 (Feb. 15, 2024) (concluding that Assistant Secretary Bitter
was appropriate defendant in visa-delay suit).
7
 But the Court agrees that Plaintiffs have not established standing to sue Attorney General

Garland or Secretary Mayorkas. Plaintiffs must plausibly allege that it is “likely, as opposed to

merely speculative,” that a favorable decision against each defendant will redress their injuries.

Lujan, 504 U.S. at 561 (cleaned up). Their Complaint falls short of that standard. Plaintiffs

argue that § 1735 requires Secretary Blinken to consult Attorney General Garland before

determining whether Plaintiffs threaten the safety or national security of the United States, and

that a 2003 agreement between the Departments of Homeland Security and State requires him to

consult Secretary Mayorkas as well. Dkt. 10 (Opp.) at 8-10. But they allege no facts showing

that either Attorney General Garland or Secretary Mayorkas has caused the delays in processing

their specific applications or that there is anything either official could do to move the process

forward. That Secretary Blinken may consult both at some point, and that they “might be

responsible” for the delay, “is simply too speculative a basis” to conclude that an order to either

would do anything to redress Plaintiffs’ injuries. Rashidi, 2023 WL 6460030, at *3 (dismissing

visa-delay claims against Secretary Mayorkas). The Court must therefore dismiss Plaintiffs’

claims against Attorney General Garland and Secretary Mayorkas for lack of jurisdiction.

Finally, the Court rejects Defendants’ other argument against redressability. Defendants

assert that “commands to State Department officials to re-adjudicate [Plaintiffs’] . . . visa

applications . . . cannot remedy [Plaintiffs’] . . . injuries” because § 1735 “precludes any State

Department official from issuing . . . visa[s] to [Plaintiffs] unless . . . specific determination[s]

[are] made that [they] ‘do[] not pose a threat to the safety or national security of the United

States,’” and Plaintiffs “do not plead that these determinations have been made yet.” Mot. at 13

(quoting 8 U.S.C. § 1735(a)). Courts in this District have routinely rejected this argument, which

misunderstands—at this point, one might conclude, willfully—the relief Plaintiffs seek. See,

8
e.g., Pourabdollah, 2024 WL 474523, at *4. Plaintiffs allege, and courts have agreed in similar

cases, that the “refusals” of their applications pending “further administrative processing” are not

final decisions.4 Compl. ¶¶ 34-38, 44, 73-76, 80; see, e.g., Pourabdollah, 2024 WL 474523, at

*4. Their injuries result not from the interim refusals of their applications but from the delay in

reaching true final decisions, including as to the determinations required by § 1735. An order

requiring Defendants “to complete [their] review more expeditiously” would redress that harm.

Khazaei, 2023 WL 6065095, at *4. As a result, Plaintiffs have standing, except with respect to

Attorney General Garland and Secretary Mayorkas.

B. Because Plaintiffs’ Claims Fail on the Merits, the Court Bypasses
Defendants’ Other Non-Merits Arguments

Defendants advance several other threshold arguments for dismissal. The Court

concludes that it need not resolve any of them before considering—and rejecting—Plaintiffs’

claims on the merits.

First, Defendants assert that the Court cannot hear Plaintiffs’ claims because of the

doctrine of consular nonreviewability, which generally “prevents a federal court from second-

guessing a . . . consular officer’s decision to issue or withhold a visa.” Baan Rao Thai Rest. v.

Pompeo, 985 F.3d 1020, 1023 (D.C. Cir. 2021); see Mot. at 25-29. Because consular

nonreviewability is not a jurisdictional issue, Baan Rao, 985 F.3d at 1027-29, the Court may, and

will, “proceed to the merits” without considering it, Almaqrami v. Pompeo, 933 F.3d 774, 784

n.3 (D.C. Cir. 2019); see Siddiqui v. Blinken, 646 F. Supp. 3d 69, 77 (D.D.C. 2022) (declining to

address consular nonreviewability because visa-delay claim failed on merits).

4
The other four individuals who originally appeared as plaintiffs, whose applications were also
initially refused for administrative processing, Compl. ¶¶ 24, 49, 62, have since obtained final
decisions on their applications, Dkts. 9, 12, illustrating that a refusal for administrative
processing is not the end of the road for a visa applicant.
9
 Second, Defendants advance what they style as a separate argument that the Court cannot

review “any statutory claim challenging the conditions of entry, visa issuance[,] and

admission . . . of non-citizens.” Mot. at 22; see id. at 20-23. This argument, which another court

in this District aptly described as “somewhat puzzling,” Ahmadi v. Scharpf, No. 23-cv-953, 2024

WL 551542, at *4 n.6 (D.D.C. Feb. 12, 2024), appears largely to restate the consular

nonreviewability defense. Even if Defendants intend the argument to sweep more broadly, they

do not claim that it goes to the Court’s Article III jurisdiction to hear this case, and the Court

does not see how it could. Indeed, Defendants acknowledge that the Supreme Court declined to

reach a similar argument in Trump, instead electing to decide that case on the merits. Mot. at 22

n.5; see 585 U.S. at 682-83. The Court follows the same path here. Cf. Ahmadi, 2024 WL

551542, at *4 n.6 (concluding that identical argument was not jurisdictional).

Third, Defendants contend that Plaintiffs have not “identif[ied] a clear, non-discretionary

duty for a consular officer to adjudicate . . . any specific visa application,” as they must to bring

an unreasonable-delay claim under either the APA or the Mandamus Act. Mot. at 14; see Norton

v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (APA); Am. Hosp. Ass’n v. Burwell, 812 F.3d

183, 189 (D.C. Cir. 2016) (Mandamus Act). This argument has generally met with a frosty

reception from courts in this District, several of which have concluded that both the APA and

State Department regulations create a clear duty to adjudicate visa applications within a

reasonable time. See, e.g., Khazaei, 2023 WL 6065095, at *5-6; Fakhimi, 2023 WL 6976073, at

*6. But some courts have come out the other way, see Mukkavilli v. Jaddou, No. 22-cv-2289,

2023 WL 4029344, at *7-12 (D.D.C. June 15, 2023), appeal docketed, No. 23-5138 (D.C. Cir.

June 23, 2023), and so, rather than wade into the dispute, the “Court will assume without

deciding” that Plaintiffs have identified “a discrete, required duty because, in any event,” their

10
claims fail on the merits,5 Ahmadi, 2024 WL 551542, at *5; accord, e.g., Barazandeh v. U.S.

Dep’t of State, No. 23-cv-1581, 2024 WL 341166, at *6 (D.D.C. Jan. 30, 2024).

C. Plaintiffs’ Claims Fail on the Merits

1. Plaintiffs have not stated plausible unreasonable-delay claims

The Court begins its merits analysis with Plaintiffs’ primary theory: that Defendants have

unreasonably delayed their processing of Plaintiffs’ visa applications. Under both the APA and

the Mandamus Act, “‘the central question’ is ‘whether the agency’s delay is so egregious as to

warrant mandamus.’” Barazandeh, 2024 WL 341166, at *6 (cleaned up) (quoting In re Core

Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008)).

To make that determination, courts in this Circuit consider the six “TRAC” factors, drawn

from the D.C. Circuit’s decision in Telecommunications Research & Action Center (TRAC) v.

FCC, 750 F.2d 70 (D.C. Cir. 1984): (1) “[T]he 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

5
Defendants argue that, at least under the Mandamus Act, and possibly under the APA, the
requirement that Plaintiffs identify a “clear, non-discretionary duty” is jurisdictional. Mot. at 14-
15. Even so, it is at most a matter of statutory jurisdiction, rather than an Article III concern.
See In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (rooting requirement
of “clear duty to act” in text of Mandamus Act). And the D.C. Circuit has held that courts may
“address[] the merits where doing so ma[kes] it possible to avoid a doubtful issue of statutory
jurisdiction.” Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (cleaned up). The Court
does so here. See da Fonseca v. Emmel, No. 23-cv-3300, 2024 WL 519603, at *3 (D.D.C. Feb.
9, 2024) (taking this approach); cf. Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 340
(D.C. Cir. 2023) (accepting as undisputed that agency had duty to act).

11
higher or competing priority”; (5) “the court should also take into account 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.” Id. at 80

(cleaned up). “These considerations are often grouped into four basic inquiries”:

First, is there any rhyme or reason—congressionally prescribed or
otherwise—for an agency’s delay (factors one and two)? Second,
what are the consequences of delay if the Court does not compel the
agency to act (factors three and five)? Third, how might forcing the
agency to act thwart its ability to address other priorities (factor
four)? Finally, is the delay intentional or due to any impropriety on
the part of the agency (factor six)?

Khazaei, 2023 WL 6065095, at *6 (cleaned up); accord, e.g., Ahmadi, 2024 WL 551542, at *5-7.

After conducting these four inquiries (in a slightly different order), the Court concludes

that the balance of the TRAC factors favors Defendants, making dismissal appropriate. See Da

Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 340-46 (D.C. Cir. 2023) (dismissing visa-

delay case based on TRAC factors).

a. TRAC factors one and two

The first two factors, which consider whether “there [is] any rhyme or reason—

congressionally prescribed or otherwise—for [the] agency’s delay,” Khazaei, 2023 WL 6065095,

at *6, point toward dismissal. Visa processing inevitably “takes a baseline amount of time,” and

“courts have generally found that immigration delays in excess of five, six, seven years are

unreasonable, while those between three to five years are often not unreasonable.” Id. Plaintiffs

had waited only about seven and eleven months, respectively, at the time they filed their

Complaint, and have waited only about seventeen and twenty-one months, respectively, now.

Compl. ¶¶ 34, 73. Even setting aside the rule that “[t]he proper method for calculating delay . . .

is the length of time between the last action the government took on a visa application and the

12
filing of [the] plaintiff’s complaint,” Barazandeh, 2024 WL 341166, at *7 n.7, Plaintiffs’ current

wait times fall well within the bounds of what courts have ordinarily found reasonable, see, e.g.,

Ahmadi, 2024 WL 551542, at *5 (finding twenty-one-month delay in processing F-visa

application reasonable).

Looking to the second TRAC factor, Plaintiffs respond that Congress has “provided

a[n] . . . indication of the speed with which it expects the agency to proceed,” TRAC, 750 F.2d at

80, in 8 U.S.C. § 1571. Opp. at 28. That provision states:

It is the sense of Congress that the processing of an immigration
benefit application should be completed not later than 180 days after
the initial filing of the application, except that a petition for a
nonimmigrant visa under section 1184(c) of this title should be
processed not later than 30 days after the filing of the petition.

8 U.S.C. § 1571(b).

The trouble for Plaintiffs is that this provision—which, they acknowledge, is nonbinding,

Opp. at 28-29—says nothing about processing of F-visa applications by consular officials. First,

the language appears in a section directed not to consular officials but to the Immigration and

Nationality Service (INS), a since-dissolved agency distinct from the State Department whose

functions have largely transferred to entities within the Department of Homeland Security. See 8

U.S.C. § 1571(a) (stating congressional purposes related to INS); El Centro Reg’l Med. Ctr. v.

Blinken, No. 3:21-cv-361, 2021 WL 3141205, at *4 & n.2 (S.D. Cal. July 26, 2021). Second,

while the “except” clause does refer to nonimmigrant visas, the statute it cross-references

addresses certain employment-based visas, not the F (student) visas that Plaintiffs seek. See 8

U.S.C. § 1184(c).

In any event, even assuming that, “though the [180-day] language is insufficient to set a

deadline, [the Court] can look to Congress’s aspirational statement as a ruler against which the

13
agency’s progress must be measured[,] . . . the delay has not reached the level of

disproportionality . . . sufficient [for the Court] to grant relief.” Da Costa, 80 F.4th at 344

(cleaned up) (discussing § 1571 in context of claim against subagency of Department of

Homeland Security). Da Costa, for example, concluded that, even considering the 180-day

period given in § 1571, a delay of four-and-a-half years in processing an immigration petition

was reasonable. Id. at 342, 344, 346.

Citing agency records and statements, Plaintiffs also argue that Defendants can and often

do finish processing visa applications more quickly than the length of Plaintiffs’ wait. Opp. at

26-30; Dkt. 15. These sources do not, however, show that officials can process all applications

so quickly. For example, Plaintiffs cite a post on the State Department’s website describing

purported improvements in visa-processing efforts.6 Dkt. 15-1. Yet the post itself cautions that

“demand remains at historically high levels in some countries” and observes that some applicants

“still face lengthy wait times” even to sit for interviews. Id. at 4. Similarly, while Plaintiffs

assert that roughly “85% of administrative processing is completed within 60 days,” Opp. at 27,

that figure leaves a significant share of applicants facing longer delays.

The upshot is that Plaintiffs have not plausibly alleged that Defendants are not following

a rule of reason in processing visa applications, and the first two TRAC factors support dismissal.

b. TRAC factor four

The fourth factor, “the effect of expediting delayed action on agency activities of a higher

or competing priority,” TRAC, 750 F.2d at 80, “carries significant weight,” Barazandeh, 2024

6
After filing their Opposition, Plaintiffs moved for the Court to take judicial notice of this post.
Dkt. 15. Defendants have not opposed the Motion, and the Court agrees that it can take judicial
notice of “information posted on official public websites of government agencies,” Markowicz v.
Johnson, 206 F. Supp. 3d 158, 161 n.2 (D.D.C. 2016), so it grants Plaintiffs’ Motion.
14
WL 341166, at *9, and also cuts strongly in Defendants’ favor. The D.C. Circuit has “refused to

grant relief, even though all the other factors considered in TRAC favored it, where a judicial

order putting [a party] at the head of the queue would simply move all others back one space and

produce no net gain.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,

1100 (D.C. Cir. 2003) (cleaned up). As the D.C. Circuit and courts in this District have

repeatedly explained in recent visa-delay cases, such “judicial reordering of [Defendants’]

priorities” is exactly what Plaintiffs seek. Khazaei, 2023 WL 6065095, at *7 (cleaned up); see,

e.g., Da Costa, 80 F.4th at 343; Ahmadi, 2024 WL 551542, at *6. “Consular processing capacity

is . . . a zero-sum game, so granting [Plaintiffs] relief would necessarily mean additional delays

for other applicants—many of whom undoubtedly face hardships of their own.” Ahmadi, 2024

WL 551542, at *6 (cleaned up). “Any such reordering of the queue of applicants seeking

adjudication would be inappropriate here because there would be no demonstrable net gain in

visa processing at large.” Id. (cleaned up).

Plaintiffs’ arguments to the contrary do not persuade. They assert first that the fact that

other individuals who submitted their visa applications after Khosravaninezhad have since had

their applications adjudicated “demonstrates [that] there is no orderly queue of applicants.” Opp.

at 35. But the fact that Defendants do not make final decisions in the exact order in which they

receive applications does not plausibly show that they are not working in an orderly fashion.

“[D]ifferent applications may [simply] require different time and attention.” Fakhimi, 2023 WL

6976073, at *9. Plaintiffs’ further arguments (1) that, if there is a line, they have waited long

enough to be at the front of it and (2) that the delay thus far shows that Defendants have “lost

[Plaintiffs’ applications] in a bureaucratic shuffle,” Opp. at 34 (cleaned up), beg the question,

assuming that the wait time to date is unreasonable and could not result from competing

15
priorities and legitimate agency needs. Contrary to that assumption, the Court has already

explained that the length of the delay, standing alone, favors Defendants.

Finally, Plaintiffs contend that Defendants have claimed in public statements to be

prioritizing F-visa applications, such that “even if [Plaintiffs’] applications were processed ahead

of others, it would be justified by . . . Defendants[’] own priority buckets.”7 Opp. at 34 (cleaned

up). If Defendants intended to prioritize Plaintiffs’ specific applications, they would presumably

do so, and, otherwise, moving Plaintiffs to the front of the queue of F-visa applicants would still

result in judicial line-reordering. The fourth TRAC factor strongly favors Defendants. See, e.g.,

Da Costa, 80 F.4th at 343; Khazaei, 2023 WL 6065095, at *7.

c. TRAC factors three and five

TRAC factors three and five, which examine “the consequences of delay,” Khazaei, 2023

WL 6065095, at *6, including the effect on “human health and welfare,” TRAC, 750 F.2d at 80,

at least arguably tilt in Plaintiffs’ favor. Plaintiffs have alleged concrete injuries to their

educational, familial, financial, and professional interests caused by Defendants’ delay. See

supra Section III.A; see, e.g., Ahmadi, 2024 WL 551542, at *6 (concluding based on similar

allegations that third and fifth factors favored plaintiff). Still, these injuries—which are likely

shared by “many others facing similar circumstances,” Siddiqui, 646 F. Supp. 3d at 77 (cleaned

up)—are not so extreme or unusual as to plausibly outweigh the other factors favoring

Defendants. See Da Costa, 80 F.4th at 344-45.

7
Plaintiffs also cite these statements in support of their argument that Defendants do not process
applications on a “first-in, first-out basis.” Opp. at 33. But, even accepting this reading (which
Defendants dispute, Dkt. 13 at 21-22), Plaintiffs can hardly complain; Defendants’ prioritizing F-
visa applications would only help Plaintiffs. And the statements in no way suggest that, within
the class of F-visa applicants, Defendants are not processing applications in an orderly way.
16
 d. TRAC factor six

Plaintiffs acknowledge that they “have not alleged impropriety lurking behind agency

lassitude” and that the sixth TRAC factor is therefore “neutral at best.” Opp. at 35. The Court

agrees that this factor favors neither side. See Da Costa, 80 F.4th at 345-46.

* * *

Taken together, the TRAC factors cut Defendants’ way, and so the Court must dismiss

Plaintiffs’ unreasonable-delay claims.

2. Any arbitrary-and-capricious claim also fails

Plaintiffs’ Complaint gestures in passing toward a claim that “Defendants have engaged

in a pattern and practice of unreasonable delay for Iranian visa applicants such as . . . Plaintiffs,”

which conduct, Plaintiffs assert, is arbitrary and capricious in violation of the APA. Compl.

¶¶ 83, 105-07; see also 5 U.S.C. § 706(2)(A) (authorizing courts to set aside agency action that is

“arbitrary, capricious, . . . or otherwise not in accordance with law”). Plaintiffs appear to have

abandoned this claim (if they ever intended to bring it) in their Opposition to Defendants’

Motion, which focuses exclusively on their unreasonable-delay claims. See Dkt. 10.

For completeness’s sake, the Court notes that, even if Plaintiffs had not forfeited this

theory, and even if such disparate treatment could be the basis of an APA claim, Plaintiffs do not

plausibly allege the existence of a discriminatory pattern or practice. See Khazaei, 2023 WL

6065095, at *7 (rejecting similar arbitrary-and-capricious claim because of lack of

nonconclusory supporting allegations). Setting aside Plaintiffs’ conclusory say-so, nothing in the

Complaint supports a reasonable inference that Defendants have singled out Iranian citizens for

17
particularly unfavorable treatment. See Iqbal, 556 U.S. at 681 (“[C]onclusory [allegations

are] . . . not entitled to be assumed true.”). The Court therefore dismisses this claim as well.8

IV. CONCLUSION AND ORDER

As Defendants acknowledge, Mot. at 38, Plaintiffs’ desire for final decisions on their visa

applications is understandable. But their Complaint does not plausibly show that the delays in

processing their applications are unreasonable, and so the Court must dismiss this case.

For these reasons, it is hereby

ORDERED that Plaintiffs’ Request for Judicial Notice, Dkt. 15, is GRANTED. It is

further

ORDERED that Defendants’ Motion to Dismiss, Dkt. 5, is GRANTED. And it is

further

ORDERED that Plaintiffs’ Complaint, Dkt. 1, and this case are DISMISSED

WITHOUT PREJUDICE.

The Clerk of Court is DIRECTED to close this case.

SO ORDERED.

This is a final appealable Order. See Fed. R. App. P. 4(a).

Date: March 8, 2024
_________________________
ANA C. REYES
United States District Judge

8
Plaintiffs’ Opposition also includes a two-sentence request that the Court compel production of
the administrative record. Opp. at 12 & n.6. Plaintiffs make this request in support of their
argument that the refusals of their applications for further administrative processing were not
final decisions. See id. The Court has already agreed with Plaintiffs on this point, so their
request is moot. In any event, since this case challenges agency inaction, rather than a final
decision, “there is no administrative record for a federal court to review.” Palakuru v. Renaud,
521 F. Supp. 3d 46, 50 n.6 (D.D.C. 2021) (cleaned up).
18