Jaraba v. Blinken

Decision Date25 October 2021
Docket NumberCAUSE NO. EP-21-CV-53-KC
Parties Jaime JARABA and Noemi Mahinay, Plaintiffs, v. Antony J. BLINKEN, Secretary of the Department of State ; and Monty Wilkinson, Acting U.S. Attorney General, Defendants.
CourtU.S. District Court — Western District of Texas

Jeffrey Dean Joseph, Pro Hac Vice, Joseph & Hall, P.C., Aurora, CO, for Plaintiffs.

Lacy L. McAndrew, U.S. Attorney's Office, San Antonio, TX, Natashia Denise Hines, U.S. Attorney's Office, Western District of Texas, El Paso, TX, for Defendants.



On this day, the Court considered Defendants' Motion to Dismiss. ECF No. 4. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part, and Plaintiffs are GRANTED leave to amend their Complaint, ECF No. 2, in a manner not inconsistent with this Order.


On January 24, 2020, Plaintiff Jaime Jaraba filed an I-129F petition for his fiancée, Plaintiff Noemi Mahinay, to receive a K-1 visa, which would allow her to leave her home in the Philippines and join him in the United States. Compl. ¶¶ 19–20. A K-1 visa permits a foreign fiancé(e) to enter the United States as a nonimmigrant; if the citizen sponsor and visa recipient validly marry each other within ninety days of the fiancé(e)'s entry, the foreign fiancé(e) may apply for lawful permanent residency. Compl. ¶ 12; Compl. Ex. C. U.S. Citizenship and Immigration Services ("USCIS"), a branch of the Department of Homeland Security ("DHS"), approved Mr. Jaraba's petition on May 5, 2020. Compl. ¶¶ 13, 20. However, this approval is only the first step in the process of issuing a K-1 visa. After USCIS approves a visa petition, it transfers the case to the National Visa Center ("NVC"), a branch of the Department of State ("State Department"), which then generates a case number for the application. Compl. ¶ 13; Compl. Ex. C. Next, the applicant schedules an interview with the relevant consulate or embassy, and the NVC transfers the application to that posting. Compl. Ex. C; Mot. Dismiss 2. Finally, the applicant undergoes the interview, and a consular officer either grants or denies the visa. See Nonimmigrant Visa for a Fiancé(e) (K-1) , U.S. Dep't of State—Bureau of Consular Affs., https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html (last accessed Oct. 18, 2021).

Even though Mr. Jaraba's petition on behalf of Ms. Mahinay has been approved for well over a year, it remains at the NVC. Compl. ¶ 21. The U.S. Embassy in Manila, Philippines ("Manila Embassy"), where Ms. Mahinay's application must be executed, has not yet scheduled her interview, so the NVC cannot transfer her case. Compl. ¶ 22–23. The apparent reason for this delay is, of course, the ongoing COVID-19 pandemic, which has reduced the Manila Embassy's capacity to process visa applications. Compl. ¶¶ 25–26; Compl. Ex. D ("Communications Log"); Mot. Dismiss 3–4. While the reason for the delayed processing is self-evident, Plaintiffs believe that the State Department and Manila Embassy have not responded adequately to the challenges posed by the pandemic. They claim that the failure to process their application constitutes unreasonable delay under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 555, 702, and 706(1). Compl. ¶¶ 40–49. They filed suit against Defendants Antony J. Blinken, Secretary of the Department of State, and Monty Wilkinson, then-Acting U.S. Attorney General, asking the Court to grant them declaratory and injunctive relief under the APA and to issue a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, forcing Defendants to adjudicate their visa application. Compl. pp. 12–13.

In response, Defendants have moved to dismiss Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim on which relief can be granted. Mot. Dismiss 1. They have also moved to dismiss the Attorney General as an improper defendant. Mot. Dismiss 20.

A. Standards
1. Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction

Federal courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs. , 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ; People's Nat'l Bank v. Off. of the Comptroller of the Currency of the U.S. , 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by statute or the Constitution, federal courts lack the power to adjudicate claims. Exxon Mobil , 545 U.S. at 552, 125 S.Ct. 2611 ; People's Nat'l Bank , 362 F.3d at 336. A party may challenge a district court's subject matter jurisdiction by filing a motion to dismiss pursuant to Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1).

A federal court must consider a motion to dismiss pursuant to Rule 12(b)(1) before any other challenge because a court must have subject matter jurisdiction before determining the validity of a claim. Moran v. Kingdom of Saudi Arabia , 27 F.3d 169, 172 (5th Cir. 1994). The party asserting jurisdiction constantly bears the burden of proof that the jurisdiction does in fact exist. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). Where the motion to dismiss is based on the complaint alone, the court must decide whether the allegations in the complaint sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981).

2. Rule 12(b)(6) motion to dismiss for failure to state a claim

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

When considering a 12(b)(6) motion, a court may not look beyond the allegations in the complaint. Roebuck v. Dothan Sec., Inc. , 515 F. App'x 275, 280 (5th Cir. 2013) ; see also Herrmann Holdings Ltd. v. Lucent Techs., Inc. , 302 F.3d 552, 565 (5th Cir. 2002) (refusing to consider facts asserted in plaintiffs' briefs on a 12(b)(6) motion to dismiss); Causey v. Sewell Cadillac-Chevrolet, Inc. , 394 F.3d 285, 288 (5th Cir. 2004) (explaining that a court converts a motion to dismiss into a motion for summary judgment if it considers materials outside of the pleadings). "[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss." Morgan Distrib. Co. v. Unidynamic Corp. , 868 F.2d 992, 995 (8th Cir. 1989) (quoting Car Carriers, Inc. v. Ford Motor Co. , 745 F.2d 1101, 1107 (7th Cir. 1984) ); accord. Roebuck , 515 F. App'x at 280. However, where a court finds a complaint "insufficiently descriptive" to support a plaintiff's claim, it may grant the plaintiff leave to amend, even when the party has not submitted a motion requesting that leave. Robbins v. XTO Energy, Inc. , No. 3:16-CV-0793-S, 2018 WL 3130605, at *4 (N.D. Tex. June 26, 2018) ; see also Flores v. Act Event Servs., Inc. , 55 F. Supp. 3d 928, 940–41 (N.D. Tex. 2014) (granting leave to amend sua sponte). Rule 15(a)(2) directs that courts should "freely give leave" to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend is generally proper so long as there is no undue delay, bad faith, prior repeated failures to cure deficiencies, undue prejudice to the opposing party, or futility of amendment. Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

B. Analysis

Plaintiffs' allegations have shifted significantly from their Complaint to their Response in Opposition to Defendants' Motion to Dismiss ("Plaintiffs' Response Brief"), ECF No. 5, but the crux of their claim is that the State Department generally and the Manila Embassy specifically have failed to process K-1 visa applications at a reasonable pace and unlawfully deprioritized fiancé(e) visas relative to other kinds of visas, with the result that their application has been unreasonably delayed. See Compl. ¶¶ 26–29, 45–49; Commc'ns Log. Defendants have moved to dismiss their claims for lack of subject matter jurisdiction and for failure to state a claim. Mot. Dismiss 1. With respect to subject matter jurisdiction, Defendants argue that the Court cannot properly exercise jurisdiction pursuant to the APA, that...

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