Throw v. Mayorkas

• Decision Date: 05 April 2023
• Docket Number: 3:22-cv-05699-DGE
• Parties: TYSON P THROW et al., Plaintiffs, v. ALEJANDRO MAYORKAS et al., Defendants.
• Court: U.S. District Court — Western District of Washington

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TYSON P THROW et al., Plaintiffs, v. ALEJANDRO MAYORKAS et al., Defendants.

No. 3:22-cv-05699-DGE

United States District Court, W.D. Washington, Tacoma

April 5, 2023

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 9)

David G. Estudillo United States District Judge

I INTRODUCTION

This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 9). For the reasons discussed herein, the Court GRANTS Defendants' motion to dismiss and DISMISSES this case with prejudice.

II BACKGROUND

Plaintiffs Tyson P. Throw and his stepdaughter K.M.M. bring suit against Alejandro Mayorkas, Secretary of the United States Department of Homeland Security, Ur Mendoza Jaddou, Director of United States Citizenship and Immigration Services (together “USCIS”) Anthony Blinken, Secretary of the United States Department of State and Peggy Petrovich, Director of the National Visa Center (together “the State Department”) challenging the prolonged delay in processing K.M.M.'s immigrant visa.

Mr Throw is an American citizen who married Chary Throw, a native of the Philippines. (Dkt No. 1 at 1.) In 2018, Mr Throw filed I-130 petitions petition for both his wife and her minor daughter, K.M.M., to join him in the United States in 2018. (Id. at 5.) Mrs. Throw's petition was approved and she was able to immigrate to the United States in March 2021. (Id.) Mr. Throw filed K.M.M.'s initial petition on July 10, 2018. (Id. at 4.) K.M.M.'s initial I-130 petition was denied on June 19, 2019. (Dkt. No. 12-1 at 4.) Mr. Throw file a motion to reopen the denied form, which was mistakenly forwarded to the National Visa Center (“NVC”) in October 2019 and then returned to the Texas Service Center (“TSC”) of USCIS in December 2019. (Id.) Mr. Throw filed a second I-130 petition in December 2021. (Dkt. No. 1 at 5.) In October 2022, the TSC reopened and approved the first I-130 petition and sent it to the NVC the following month. (Dkt. No. 12-1 at 4.) The TSC also approved the second I-130 petition in November 2022 and sent the petition to the NVC that same month. (Id. at 5.) The parties agree that K.M.M. did not become documentarily qualified for a consular interview (the next step in her visa application process) until mid-January 2023. (See Dkt. Nos. 10 at 2; 13 at 5.)

Plaintiffs filed suit on September 19, 2022, seeking a writ of mandamus against USCIS and the State Department to process K.M.M.'s visa application and asking the Court to find that the agencies violated immigration law and the Administrative Procedure Act (“APA”). (Dkt. No. 1 at 10.) Plaintiffs seek a court order requiring Defendants “to process Ms. K.M.M.'s first petition or approve her second petition and schedule her for her immigrant visa interview.” (Id.) The Court twice issued orders holding the case in abeyance on the promise that the parties were working to resolve underlying issues in the litigation. (Dkt. Nos. 6, 8.) On February 27, 2023, the Defendants filed their motion to dismiss the current case for lack of subject matter jurisdiction and for failure to state a claim. (Dkt. No. 9.) Plaintiffs filed their reply in opposition to the motion on March 16, 2023 (Dkt. No. 13) and Defendants filed a timely reply (Dkt. No. 14).

III DISCUSSION

A. Legal Standard

Defendants USCIS and the State Department move to dismiss Plaintiffs' claims for mandamus and declaratory relief under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Federal courts are courts of limited jurisdiction and may only hear actual “Cases” and “Controversies.” See Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016), as revised (May 24, 2016). A party may challenge the Court's subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “A ‘facial' attack accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air, 373 F.3d at 1039). A factual attack challenges the veracity of the plaintiff's allegations and the plaintiff is required to support her jurisdictional allegations with evidence “under the same evidentiary standard that governs in the summary judgment context.” See Leite, 749 F.3d at 1121. Defendants here bring a factual attack on this Court's jurisdiction by arguing that Plaintiffs' claims against USCIS are moot (Dkt. No. 9 at 6) and the Court may therefore weigh extrinsic evidence introduced by the parties on this claim without converting the motion into a motion for summary judgment.

Defendants also argue Plaintiffs have failed to state a claim upon which relief can be granted as against the State Department. (Id.) “Under Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and construes them in the light most favorable to the nonmoving party.” Nw. Env't Advocs. v. U.S. Dep't of Com., 283 F.Supp.3d 982, 990 (W.D. Wash. 2017). “Dismissal for failure to state a claim is appropriate only ‘if it appears beyond doubt that the [non-moving party] can prove no set of facts in support of his claim which would entitle him to relief.'” Vasquez v. Los Angeles (“LA”) Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)).

B. Plaintiffs' Claims Against USCIS Are Moot

The Court agrees with Defendants, and Plaintiffs appear to concede (see Dkt. No. 13 at 3), that Plaintiffs' claims against USCIS are moot.

As part of the Article III limitation on federal judicial power, federal courts lack “jurisdiction to hear moot” claims. Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th Cir. 1990). Claims “become[] moot ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome' of the litigation.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Where an agency has already provided the specific relief requested by a plaintiff, a claim for a writ of mandamus is moot. See Kuzova v. U.S. Dep't of Homeland Sec., 686 Fed.Appx. 506, 507 (9th Cir. 2017) (holding claims for mandamus requesting USCIS adjudicate applications for naturalization moot because USCIS had adjudicated the claimant's application).

Plaintiffs have requested the Court “order Respondents to immediately carry out their proscribed duty of locating the first petition or approving the second petition and thereafter scheduling K.M.M.'s immigrant interview in the Philippines so that she may finally travel to the United States and be reunited with her mother and stepfather.” (Dkt. No. 1 at 3.) USCIS asserts it has approved K.M.M's second I-130 form and sent it to the NVC. (Dkt. No. 12-1 at 3.) Accordingly, USCIS has completed its statutory responsibilities and has no further role in the visa approval process. See Tekle v. Blinken, No. 21-CV-1655 (APM), 2022 WL 1288437, at *2 (D.D.C. Apr. 29, 2022) (noting that USCIS “no longer ha[s] any role in visa processing” once it has approved initial I-130 forms).

Given that the USCIS may not provide any further relief to Plaintiffs, the Court finds Plaintiffs' claims against USCIS are moot and the Court does not have jurisdiction over them.

C. Mandamus Relief is Not Warranted

The Court also agrees Plaintiffs' request for a writ of mandamus to compel the State Department to immediately schedule K.M.M.'s interview should be denied.

“Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and” there is no other “adequate remedy” to address the claim. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997).

Plaintiffs do not appear to contest the State Department's claim that it does not have a nondiscretionary, ministerial duty to schedule K.M.M.'s interview. (See generally Dkt. No. 13.) And the Court can find no statutory or regulatory obligation requiring the State Department to schedule a consular interview by a date certain. See, e.g., Tekle, 2022 WL 1288437, at *3 (“Congress did not provide a statutory deadline to complete processing or adjudication of visa applications. In fact, ‘Congress has given the agencies wide discretion in the area of immigration processing.”'). The Court therefore finds Plaintiffs do not state a claim for mandamus relief as against the State Department.

D. There is No Unreasonably Delay in Scheduling K.M.M.'s Interview

The Court separately concludes the State Department has not unreasonably delayed scheduling K.M.M.'s under the APA.

The APA “imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time,' and authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed.'” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003); see also 5 U.S.C. §§ 555(b), 706(1).

To determine whether an agency action is “unreasonably delayed,” courts weigh six factors:

(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

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