Varghese v. Blinken
| Docket Number | 21-cv-2597 (CRC) |
| Decision Date | 29 July 2022 |
| Parties | JIJO VARGHESE, Plaintiff, v. ANTONY BLINKEN, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Jijo Varghese, a lawful permanent resident of the United States, seeks to compel the Department of State to adjudicate his wife's U.S. visa application. Varghese filed a visa petition on his wife's behalf four years ago. The government moved to dismiss this suit for lack of subject matter jurisdiction and failure to state a claim. Varghese opposed dismissal and moved for summary judgment on his claims. Because Varghese has not plausibly alleged that the delay of his wife's visa application is unreasonable, the Court will grant the government's motion to dismiss the case and deny Varghese's summary judgment motion.
Mr Varghese is a lawful permanent resident of the United States who lives in Georgia. See Compl. ¶ 5; Varghese Decl. ¶¶ 2-3, ECF No. 6-1. His wife, Neethu Sara George, lives in India. Varghese Decl. ¶¶ 4, 9.
In July 2018, Varghese filed a visa petition on George's behalf. Compl. ¶¶ 1, 13. U.S. Citizenship and Immigration Services (“USCIS”) approved the petition in October 2019. Id. ¶ 13. On December 9 of that year, Varghese received confirmation that the Department of State had assigned a number to George's application. Varghese Decl. ¶ 5. The application remains pending. Indeed, Varghese and George did not receive an update on its status until December 8, 2021- several months after the filing of this suit. Id. ¶ 8. In an email, the State Department's National Visa Center (“NVC”) notified the couple that George's immigration case had been “documentarily complete” since January 25, 2021. Id.; Pl.'s Ex. B (NVC email), ECF No. 6-3. Once an application is documentarily complete, the NVC coordinates with the appropriate U.S. Embassy or Consulate-in this case, in Mumbai[1]-to schedule an applicant interview. See Immigrant Visa Process, Step 9: Submit Documents, U.S. Dep't of State, Bureau of Consular Affs., https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-8-scan-collected-documents/step-9-upload-and-submit-scanned-documents.html (last visited July 29, 2022).[2] Varghese alleges that, since receiving that notice, he and George have repeatedly inquired about George's visa application and “received no meaningful responses . . . [or] status updates.” Mem. in Opp'n to Defs.' Mot. Dismiss & in Supp. of Pl.'s Mot. Summ. J. (“Opp'n”) at 5, ECF No. 6; see also Varghese Decl. ¶ 7. As of July 29, 2022, the State Department's website indicated that George's visa was “ready” for an interview.
In October 2021, Varghese brought suit against several government officials under the Administrative Procedure Act's (“APA”) unreasonable delay provision, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. Compl. ¶¶ 6-11, 13-33. Varghese asks the Court to compel the government to adjudicate his wife's visa application under either Act. Id. ¶ 33. The government moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Varghese has opposed the government's dismissal effort and moved for summary judgment. Those motions are ripe for the Court's review.
When evaluating a 12(b)(1) or 12(b)(6) motion to dismiss, the court “must treat the complaint's factual allegations as true, and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (cleaned up); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). However, the Court need not accept the plaintiff's “legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d 296, 315 (D.C. Cir. 2014) (examining 12(b)(6) motion); see Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (examining 12(b)(1) motion).
On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.” Tex. Child.'s Hosp. v. Azar, 315 F.Supp.3d 322, 329 (D.D.C. 2018) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). In making this determination, the court “is not limited to” considering only “the allegations of the complaint,” but “may consider such materials outside the pleadings as it deems appropriate.” Transp. Trades Dep't, AFL-CIO v. Nat'l Mediation Bd., 530 F.Supp.3d 64, 69 (D.D.C. 2021) (citations omitted); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). When ruling on a 12(b)(6) motion, a court may consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Daniels v. United States, 947 F.Supp.2d 11, 17 (D.D.C. 2013).
Because the Court will grant the government's motion to dismiss, it need not address the summary judgment standard.
The Court will first address the issue of plaintiff's standing to bring suit against certain parties in this case. It will then turn to the merits of plaintiff's unreasonable delay claim.[3]
A. Claims Against the Attorney General and FBI Director
The government first seeks dismissal of certain government officials on the ground that they “cannot provide the relief requested.” Mot. Dismiss at 5, ECF No. 5 (cleaned up). The Court agrees that United States Attorney General Merrick Garland and Federal Bureau of Investigation (“FBI”) Director Christopher Wray must be dismissed because the Court lacks jurisdiction over the claims against them.
The Court reads the government's argument on this point to go to Varghese's standing to bring suit, which is an essential element of this Court's jurisdiction.[4] See Lujan, 504 U.S. at 560. “To demonstrate standing under Article III of the Constitution, [Varghese] must show an injury in fact caused by the [relevant] defendant and redressable by judicial relief.” Stilwell v. Off. of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009). Varghese does not have standing to sue either the Attorney General or the FBI Director because he cannot establish any injury that is fairly traceable to those defendants' acts and redressable by relief against them.
Varghese contends that Attorney General Garland has caused him injury “because his duties include ensuring compliance with all applicable federal laws, including the APA.” Opp'n at 10. This duty, however, is too general and too far removed from the State Department's processing of individual visa applications to have caused Varghese's claimed injury. See Lujan, 504 U.S. at 560 (). Varghese's bid for standing to sue the FBI Director rests on his allegation that the FBI “is responsible for running all . . . visa applicants through its various security and background check programs.” Compl. ¶ 9. Varghese “suspects that the delay” in processing George's visa application “may be attributed to a failure to process a security check.” Id. (emphasis added). Again, this admittedly speculative allegation does not establish a sufficient causal link between the FBI Director and the delay at the center of this case. See Lujan, 504 U.S. at 560. Because he has not sufficiently alleged that either defendant has had any role in processing George's visa application or that his injuries can be traced to them, Varghese does not have standing to sue these defendants. See Tekle v. Blinken, No. 21-cv-1655, 2022 WL 1288437, at *2 (D.D.C. Apr. 29, 2022) (). Accordingly, the Court dismisses the Attorney General and FBI Director from this case.[5]
B. Unreasonable Delay
The Court moves to Varghese's claim that the government's delay in processing his wife's visa application violates the APA and Mandamus Act. The APA “imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time.'” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. § 555(b)). The APA also “authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed.'” Id. (quoting 5 U.S.C. § 706(1)). In reviewing agency inaction, such as visa processing delays, courts use the same standard under both the APA and the Mandamus Act. Skalka v. Kelly, 246 F.Supp.3d 147, 152 (D.D.C. 2017). Thus, the Court will analyze the unreasonable delay claims together.
To determine whether a delay requires judicial intervention courts in this district use the factors developed in Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 79-80 (D.C. Cir. 1984). In analyzing a motion to dismiss, courts apply the TRAC factors not to “determin[e] whether there has been an unreasonable delay,” but to determine if a plaintiff's complaint “alleged facts sufficient to state a plausible claim for unreasonable administrative delay.” Jingjing Liu v. Mayorkas, No. 20-cv-654, 2021 WL 2115209, at *3 ...
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