Taj v. United States Dep't of State

• Decision Date: 28 November 2022
• Docket Number: Civil Action 22-1087 (RDM)
• Parties: SUHAIL TAJ, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

SUHAIL TAJ, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

Civil Action No. 22-1087 (RDM)

United States District Court, District of Columbia

November 28, 2022

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

Plaintiff Suhail Taj, a lawful permanent resident of the United States, brings this action under the Administrative Procedure Act, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361, to compel Defendants-various departments and officers of the United States-to adjudicate the immigrant visa application of his wife, Afsheen Arif, who currently lives in Pakistan. Dkt. 1 (Compl.). Plaintiff argues that Defendants have unreasonably delayed adjudicating his wife's application and have thereby violated the APA, 5 U.S.C. § 555(b), and the Due Process Clause of the Fifth Amendment. Defendants have moved to dismiss the case for failure to state a claim. Dkt. 7. For the reasons that follow, the Court will GRANT in part and DENY in part without prejudice Defendants' motion.

I. BACKGROUND

The following factual allegations are taken from Plaintiff's complaint, which the Court accepts as true for the purposes of Defendants' motion to dismiss. See Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 67 (D.C. Cir. 2015).

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On September 21, 2018, Suhail Taj, a lawful permanent resident of the United States, submitted a Form I-130 (an Alien Relative Petition) to U.S. Citizenship and Immigration Services (“UCSIS”) on behalf of his wife, Afsheen Arif, who is a Pakistani citizen. Dkt. 1 at 3-4 (Compl. ¶¶ 12-13). USCIS approved Plaintiff's visa petition in December 2019 and forwarded it to the National Visa Center (“NVC”), a component of the State Department, for additional processing. Id. at 4 (Compl. ¶¶ 15-16). The NVC assigned a case number to the petition, but has not, to date, called Ms. Arif to the U.S. Embassy in Islabamad for an interview. Id. (Compl. ¶¶ 16-17). In the intervening years, Plaintiff has made several inquiries with the consulate, to no avail. Id. (Compl. ¶ 18).

Plaintiff commenced this action on April 19, 2022, naming the State Department, the Secretary of State, the U.S. Embassy in Islamabad, and the Charge D'Affaires of the United States at the U.S. Embassy in Islamabad as Defendants. Dkt. 1 (Compl.). Plaintiff alleges that Defendants' “refus[al] to adjudicate Plaintiff's application and to issue the requested visa” violates Defendants' “non-discretionary duty to conclude agency matters” under Section 555(b) of the Administrative Procedure Act, id. at 4-5 (Compl. ¶¶ 20-22), and violates his Fifth Amendment right to “fundamental fairness in administrative adjudication,” id. at 6 (Compl. ¶ 35). Moreover, although Plaintiff does not name the Department of Homeland Security (“DHS”) as a Defendant in the suit, he asserts that Defendants are intentionally delaying his wife's visa application pursuant to a DHS policy known as the “Controlled Application Review and Resolution Program” (or “CARRP”), id. at 5-6 (Compl. ¶¶ 24-29), which he contends “delays the applications of applicants” from Muslim-majority countries or regions “due to security concerns,” id. at 5 (Compl. ¶ 24). Plaintiff, accordingly, also requests that this Court “[e]nter a judgment declaring that [] CARRP violates the INA” and that “Defendants violated the

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APA by adopting CARRP without promulgating a rule and following the process for notice and comment.” Id. at 7 (Compl.).

On July 7, 2022, Defendants moved to dismiss Plaintiff's complaint for failure to state a claim and for lack of jurisdiction. Dkt. 7. They assert that “any delay here is not unreasonable as a matter of law,” Dkt. 7 at 5, and that Plaintiff has failed to allege either a procedural or substantive due process violation, id. at 15.

II. LEGAL STANDARD

A. Rule 12(b)(1)

Because “[f]ederal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute,” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted), they have “an affirmative obligation to consider whether the constitutional and statutory authority exist for [them] to hear each dispute” brought before them, James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quotation marks omitted). If the “court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

A challenge to the Court's jurisdiction “may take one of two forms.” Hale v. United States, No. 13-cv-1390, 2015 WL 7760161, at *3 (D.D.C. Dec. 2, 2015). First, a Rule 12(b)(1) motion “may raise a ‘facial' challenge to the Court's jurisdiction, which contests the legal sufficiency of the jurisdictional allegations contained in the complaint.” Id. In this posture, the Court must accept the factual allegations of the complaint as true and construe them in the light most favorable to the non-moving party. Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C. 2006) (collecting cases). “Alternatively, a Rule 12(b)(1) motion may pose a ‘factual' challenge to the Court's jurisdiction.” Hale, 2015 WL 7760161, at *3. When a motion to

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dismiss is framed in this manner, the Court “may not deny the motion . . . merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant” but “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). The Court “has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,” so long as it “afford[s] the nonmoving party an ample opportunity to secure and present evidence relevant to the existence of jurisdiction.” Prakash v. Am. Univ., 727 F.2d 1174, 1179-80 (D.C. Cir. 1984) (internal quotation marks omitted).

B. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure...