Arab v. Blinken

• Decision Date: 21 April 2022
• Docket Number: Civil Action No. 21-1852 (BAH)
• Citation: 600 F.Supp.3d 59
• Parties: Mohamed ARAB, Plaintiff, v. Antony BLINKEN, in his official capacity as Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

600 F.Supp.3d 59

Mohamed ARAB, Plaintiff,

v.Antony BLINKEN, in his official capacity as Secretary of State, et al., Defendants.

Civil Action No. 21-1852 (BAH)

United States District Court, District of Columbia.

Signed April 21, 2022

Joshua L. Goldstein, Goldstein Immigration Lawyers, Los Angeles, CA, for Plaintiff.

Stephanie R. Johnson, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff Mohamed Arab, a U.S. citizen, seeks to compel defendants—various federal officials in their official capacities—to adjudicate his wife's visa application, which has been pending without decision for over two years. Compl. ¶¶ 1, 14, ECF No. 1. Plaintiff claims defendants have unreasonably delayed the visa application, in violation of the Administrative Procedures Act ("APA") and the Mandamus Act, id. ¶¶ 19, 33–34, and have done so intentionally by applying the policies of the Controlled Application Review and Resolution Program ("CARRP") to their review of the visa application, in violation of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , Article 1, Section 8, Clause 4 of the U.S. Constitution, the Fifth Amendment of the U.S. Constitution, and the APA, id. at 8–9. Defendants have moved to dismiss this case for lack of jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for failure to state a claim under Rule 12(b)(6). Defs.’ Mot. Dismiss & Mem. Supp. Mot. Dismiss ("Defs.’ Mot."), at 1, ECF No. 6. While contesting defendants’ challenges under Rules 12(b)(1) and 12(b)(6), plaintiff moves for summary judgment. Pl.’s Mot. Summ. J. ("Pl.’s Mot."), at 1, ECF No. 9. For the reasons set forth below, plaintiff's motion for summary judgment is denied and defendants’ motion to dismiss is granted.

I. BACKGROUND

Following a brief review of the statutory and regulatory background, the factual history underlying the claims and procedural history of this case are summarized below.

A. Statutory and Regulatory Background

The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , authorizes the issuance of visas to different categories of immigrants, including relatives of U.S. citizens. 8 U.S.C. § 1154 ; 8 C.F.R. §§ 204.1(a)(1), (b). A U.S. citizen seeking to obtain lawful permanent resident status for an immediate relative, including a spouse, must file a Form I-130, Petition for Alien Relative, with U.S. Customs and Immigration Services ("USCIS"). 8 U.S.C. §§ 1154, 1151(b)(2)(A)(i) (defining a spouse as an "immediate relative" for the purposes of Form I-130 petitions); 8 C.F.R. § 204.1(a)(1). If USCIS approves the petition, the case is forwarded to the National Visa Center ("NVC"), the Department of State processing center. 8 C.F.R. § 204.2(a)(3). The foreign spouse must then submit additional paperwork and fees to NVC. 22 C.F.R. § 42.67. After processing the requisite materials, NVC schedules an interview for the applicant with a consular officer at the embassy with jurisdiction over the applicant's residence. Id. § 42.62. Following the interview, the consular officer must either issue or refuse the visa. Id. § 42.81(a).

B. Factual Background

In October 2018, plaintiff filed a visa petition on his wife's behalf with USCIS, hoping to have her join him in the United States as a lawful permanent resident. Compl. ¶¶ 14–15. Although USCIS approved the petition in October 2019, id. ¶ 14, and plaintiff has paid all the requisite fees, id. ¶ 25, the application has yet to be finally adjudicated, id. ¶ 1. The next step in the process is for plaintiff's wife to attend a consular interview in Jordan so that her visa application can be finally adjudicated. 22 C.F.R. § 42.62 ; see Compl. ¶ 12. The application remains, however, at NVC, without NVC scheduling a consular interview. See Compl. ¶ 14 (identifying plaintiff's State Department receipt number); Visa Status Check , U.S. DEP'T OF STATE , https://ceac.state.gov/CEACStatTracker/Status.aspx (last visited Apr. 19, 2022) (showing plaintiff's case status, based on the provided receipt number, as "At NVC").

In March 2020, the State Department temporarily suspended visa services at all U.S. embassies and consulates, including the embassy in Jordan, due to the onset of the COVID-19 pandemic. Suspension of Routine Visa Services , U.S. DEP'T OF STATE , https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-news-archive/suspension-of-routine-visa-services.html (July 22, 2020).¹ In July 2020, the State Department authorized a phased resumption of visa services. Id. Subsequently, in November 2021, the State Department returned broad discretion to embassies and consulates in determining how to prioritize appointments as safely as possible in all visa categories. Visa Services Operating Update , U.S. DEP'T OF STATE , https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Nov. 19, 2021).

Despite efforts to resume pre-pandemic processing capabilities, many embassies and consulates face substantial backlog of immigrant visa applications. See Briefing, Julie Stufft, Acting Deputy Assistant Secretary, Bureau of Consular Affairs, U.S. Dep't of State, Update on U.S. Immigrant Visa Processing at Embassies and Consulates (Mar. 9, 2021), https://www.state.gov/briefings-foreign-press-centers/update-on-u-s-immigrant-visa-processing-at-embassies-and-consulates/. This backlog has caused increased wait times for individual applicants awaiting an appointment date from NVC. Id. According to the State Department's website, the U.S. Embassy in Amman, Jordan, much like other embassies around the world, is experiencing substantial pandemic-related backlog in every visa category, resulting in significant delays in the scheduling of consular interviews. See Immigrant Visas , U.S. EMBASSY IN JORDAN , https://jo.usembassy.gov/visas/immigrant-visas/ (last visited Apr. 19, 2022). Nonetheless, the State Department has publicly committed "to resolve backlogs and process visas as quickly and efficiently as [it] can" while also ensuring that the "health and safety of [its] personnel and [its] clients] coming into [the] consular sections abroad" remains "the department's highest priority during the pandemic." Briefing, Julie Stufft, Acting Deputy Assistant Secretary, Bureau of Consular Affairs, U.S. Dep't of State, Update on U.S. Immigrant Visa Processing at Embassies and Consulates (Mar. 9, 2021), https://www.state.gov/briefings-foreign-press-centers/update-on-u-s-immigrant-visa-processing-at-embassies-and-consulates/.

Despite plaintiff's repeated attempts to contact NVC regarding his case, NVC has yet to provide any meaningful status update or any information on processing times. Compl. ¶¶ 16–17. As a result, plaintiff and his wife have remained separated for three years and six months with no indication as to when the delay in adjudicating the application may be resolved. This prolonged separation has resulted in a "profound and negative impact" on the couple. Id. ¶ 18.

C. Procedural Background

On July 12, 2021, plaintiff commenced this action seeking "to compel the [d]efendants to take action on and adjudicate" his wife's visa application and asserting that, in failing to schedule a consular interview, defendants have unreasonably delayed the visa application in violation of the APA and the Mandamus Act. Id. ¶¶ 1, 19, 33. Plaintiff also claims that defendants have unlawfully delayed his visa application, pursuant to CARRP, a policy of the Department of Homeland Security designed "to investigate and adjudicate applications deemed to present potential ‘national security concerns,’ " id. ¶¶ 37, 39, which policy, according to plaintiff, "intentionally delays the applications of Muslims or those from predominantly Muslim countries due to perceived security concerns," id. ¶¶ 36–39.

As noted, pending before the Court is defendants’ motion to dismiss and plaintiff's motion for summary judgment on his APA, Mandamus, and CARRP claims. See generally Defs.’ Mot.; Pl.’s Mot.; Pl.’s Mem. Opp'n Defs.’ Mot. Dismiss & Supp. Pl.’s Mot. Summ. J. ("Pl.’s Opp'n"), ECF No. 8. Both motions are now ripe for review.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

"Federal courts are courts of limited jurisdiction," Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ), and "have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto," Johnson v. Comm'n on Presidential Debates , 869 F.3d 976, 980 (D.C. Cir. 2017) (quoting Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff thus "bears the burden of invoking the court's subject matter jurisdiction." Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015).

When a jurisdictional argument "present[s] a dispute over the factual basis of the court's subject matter jurisdiction," "the court must go beyond the pleadings and resolve" any dispute necessary to the disposition of the motion to dismiss. Feldman v. FDIC , 879 F.3d 347, 351 (D.C. Cir. 2018) (alteration in original) (quoting Phoenix Consulting v. Republic of Angola , 216 F.3d 36, 40 (D.C. Cir. 2000) ). The court must accept as true "material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.’ " Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005) ). In addition, however, the "court may properly consider ... evidentiary material in the record," again affording the plaintiff "the benefit of all reasonable inferences." Feldman...