Akrayi v. United States Dep't of State

• Decision Date: 09 March 2023
• Docket Number: 22-cv-1289 (CRC)
• Parties: ARI AKRAYI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE et. al., Defendants.
• Court: U.S. District Court — District of Columbia

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ARI AKRAYI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE et. al., Defendants.

No. 22-cv-1289 (CRC)

United States District Court, District of Columbia

March 9, 2023

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

Plaintiff Ari Akrayi, a United States citizen, has been waiting nearly three years for the government to adjudicate his Iraqi wife's U.S. visa application. Claiming unreasonable delay under the Administrative Procedure Act (“APA”) he filed this suit to compel the State Department to do so. Akrayi also challenges an internal Department of Homeland Security (“DHS”) initiative-the Controlled Application Review and Resolution Program (“CARRP”)- that applies heightened screening to visa applications with potential national security concerns. Because Akrayi has not met his burden to plausibly allege an unreasonable delay, a violation of his due process rights, or a concrete injury due to CARRP, the Court will grant the government's motion to dismiss the complaint.

I. Background

Mr. Akrayi filed an I-130 visa petition in April 2019 to obtain lawful permanent resident status for his wife, Zhala Ibrahim Jameel, an Iraqi citizen. Compl. ¶¶ 2, 11, 13-15. Almost a year later, in March 2020, the United States Citizenship and Immigration Services (“USCIS”) approved the petition. Id. ¶ 15. Akrayi's petition was then processed by the National Visa Center (“NVC”), which forwarded the case to the U.S. Embassy in Abu Dhabi. Id. ¶ 16. Jameel has yet to be interviewed by the Embassy. See id. ¶¶ 17-18. Akrayi has repeatedly attempted to obtain a decision from USCIS, including contacting the NVC numerous times. Id. ¶ 19. But to no avail. Id.

Akrayi further alleges “[o]n information and belief” that the government is intentionally delaying a response to Jameel's visa application through CARRP. Compl. ¶¶ 25-30. The complaint describes CARRP as an internal DHS policy that flags visa applications that present potential national security concerns and directs field officers to deny the applications or at least delay their adjudication. Id. ¶¶ 25, 28. But by casting too wide a net, Akrayi claims, the CARRP policy errs by labeling “innocent, law-abiding” residents, like Jameel, as “national security concerns.” Id. ¶ 29. Akrayi also asserts that CARRP targets applications from predominantly Muslim countries. See id. ¶¶ 26, 30.

In May 2022, Akrayi brought suit against several government officials and agencies under the APA's unreasonable delay provision, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. He requests an order directing the government to process Jameel's visa application within sixty days and issue her an immigrant visa, and seeks declaratory and injunctive relief as to CARRP. The government moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

II. Legal Standards

To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ramirez v. Blinken, 594 F.Supp.3d 76, 85 (D.D.C. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). At this stage, courts must “accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in the plaintiff's favor.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). But a court need not accept a plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “In determining whether a complaint fails to state a claim, [a court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

The government contends first that all of Akrayi's claims are barred by the doctrine of consular non-reviewability. After rejecting this contention, the Court will turn to each claim: (1) unreasonable delay under the APA and Mandamus Act, (2) violation of due process, and (3) the challenge to CARRP.

A. Consular Non-Reviewability

The doctrine of consular non-reviewability “shields a consular official's decision to issue or withhold a visa from judicial review, at least unless Congress says otherwise.” Baan Rao Thai Rest. v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021) (quoting Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999)). As recently clarified by the D.C. Circuit, dismissal pursuant to the consular non-reviewability doctrine “is a merits disposition under [Rule] 12(b)(6).” Id. at 1027. While the doctrine “clearly applies to final visa determinations,” it “does not apply to challenges regarding decisions that are not yet final.” Joorabi v. Pompeo, 464 F.Supp.3d 93, 100 (D.D.C. 2020).

This Court has consistently held that the doctrine of consular non-reviewability does not bar claims that the “Government has unreasonably delayed rendering a decision.” Didban v. Pompeo, 435 F.Supp.3d 168, 174 (D.D.C. 2020) (Cooper, J.) (holding that consular non-reviewability does not bar review of the government's failure to decide an application); see also Giliana v. Blinken, 596 F.Supp.3d 13, 18 (D.D.C. 2022) (Cooper, J.) (“[C]laims alleging unreasonable delay . . . are not barred by the doctrine of consular nonreviewability.” (cleaned up)). This case is no different. Akrayi challenges USCIS's delay in rendering a decision, and “not an actual final decision made by a consular officer.” Id. at 19.

The government nonetheless contends that the D.C. Circuit's decision in Baan Rao Thai Rest. v. Pompeo bars review here. 985 F.3d at 1024. Not so. Baan Rao held that the doctrine of consular non-reviewability prevents judicial review of a consular office's decision to “issue or withhold” a visa. Id. at 1024-25. Challenging a delay in processing a visa is distinguishable from challenging a decision to “withhold a visa.” While Baan Rao bars review of the latter, it is silent as to the former. See Al-Gharawy v. U.S. Dep't of Homeland Sec., No. 21-1521, 2022 WL 2966333, at *8 (D.D.C. July 27, 2022) (noting that the word “withhold” can imply an active or passive state of affairs, but that Baan Rao concerned an active visa denial rather than a “temporary or passive refusal”); Sawahreh v. U.S. Dep't of State, No. 22-1456, 2022 WL 4365746, at *3-4 (D.D.C. Sept. 21, 2022) (rejecting argument that Baan Rao's use of the word “withheld” barred review of cases claiming unreasonable delay of visa adjudication). As “nothing in Baan Rao even hints that it upends” caselaw holding that consular non-reviewability does not apply to unreasonable delay cases, review of Akrayi's claim is not barred. See Giliana, 596 F.Supp.3d at 19.

B. Unreasonable Delay

The Court now turns to Akrayi's contention that the government has unreasonably delayed the processing of Jameel's visa, in violation of the APA and Mandamus Act. See Compl. ¶¶ 7, 22, 32. The APA grants courts the authority to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), when an agency does not resolve a matter presented to it “within a reasonable time.” 5 U.S.C. § 555(b); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003). The standards for reviewing agency inaction-including visa processing delays-are the same under the APA and Mandamus Act. Skalka v. Kelly, 246 F.Supp.3d 147, 152 (D.D.C. 2017). The Court will thus resolve the unreasonable delay claims together.

To assess whether agency delay is reasonable, courts in this circuit employ the six-factor test outlined in Telecommunications Research & Action Center v. FCC (‘‘TRAC”), 750 F.2d 70 (D.C. Cir. 1984). Although the TRAC framework is a “fact intensive inquiry[,]” it still proves useful at the motion to dismiss stage. Liu v. Mayorkas, No. 20-cv-654, 2021 WL 2115209, at *3 (D.D.C. May 25, 2021). On a 12(b)(6) motion, courts apply the TRAC factors not to “determine[e] whether there has been an unreasonable delay,” but instead to evaluate whether a plaintiff's complaint alleges “facts sufficient to state a plausible claim for unreasonable administrative delay.” Id. (cleaned up). The TRAC factors are as follows:

(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 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.'”

In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC, 750 F.2d at 80) (cleaned up).

Whether an agency's delay is unreasonable depends on “the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency” and “cannot be decided in the abstract, by reference to some number of months or years.” Didban, 435 F.Supp.3d at 176 (quoting Mashpee Wampanoag Tribal Council, 336 F.3d at 1102). Thus, in balancing the TRAC factors, courts consider “the importance of competing priorities in assessing the reasonableness of an...