Syed Arif Hussain Mosavi v. Rena Bitter et al

Filing 18

ORDER GRANTING MOTION TO DISMISS 10 by Judge Otis D. Wright, II: The Court GRANTS Defendants' Motion to Dismiss (SEE DOCUMENT FOR SPECIFICS). Because the Court finds "the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Schreiber Distrib., 806 F.2d at 1401, the dismissal is WITHOUT LEAVE TO AMEND. (lc)

O

1
2
3
4
5
6
7
8
9
10
11

United States District Court
Central District of California

12
13
14

SYED ARIF HUSSAIN MOSAVI,

15
16
17
18

Case № 2:24-cv-01769-ODW (AJRx)

Plaintiff,
ORDER GRANTING

v.

MOTION TO DISMISS [10]

RENA BITTER et al.,
Defendants.

19
20

I.

INTRODUCTION

21

Plaintiff Syed Arif Hussain Mosavi brings this mandamus action against

22

Defendants Rena Bitter, Andrew Schofer, and Antony Blinken (“Defendants”) in their

23

official capacities as Assistant Secretary Bureau of Consular Affairs, Deputy Chief of

24

Mission for the United States Embassy in Pakistan, and Secretary of State for the

25

United States Department of State, respectively. (Compl. ¶¶ 14–17, ECF No. 1.)

26

Mosavi seeks to compel adjudication of his wife’s I-130 visa application. (Id. ¶ 1.)

27

Defendants now move to dismiss the Complaint for failure to state a claim under

28

Federal Rule of Civil Procedure (“Rule”) 12(b)(6).

(Mot. Dismiss (“Motion” or

1

“Mot.”) 1, ECF No. 10.) For the following reasons, the Court GRANTS the Motion.1
II.

2

BACKGROUND2

3

In July 2022, Mosavi filed a visa petition with United States Citizenship and

4

Immigration Service (“USCIS”) on behalf of his wife, Syeda Shamsiya Miraj, seeking

5

to obtain her lawful permanent resident status. (Compl. ¶¶ 18, 20.) Mosavi is a

6

United States citizen and Miraj is a Pakistani national. (Id. ¶ 14; Opp’n 6, ECF

7

No. 13.) In June 2023, USCIS approved the visa petition and sent it to the National

8

Visa Center (“NVC”). (Compl. ¶¶ 19, 21.) In July 2023, NVC notified Mosavi that

9

Miraj’s case was “Documentarily Qualified,” meaning NVC had all the documents

10

required. (Id.) NVC then placed Miraj in the queue for an available interview with a

11

U.S. consular officer at the U.S. Embassy in Pakistan, where Miraj would be able to

12

complete and execute her visa application. (Opp’n 6; Mot. 3, 4.) NVC has not yet

13

scheduled Miraj for an interview. (Compl. ¶¶ 3, 22; Opp’n 6.)

14

On March 5, 2024, Mosavi filed this action alleging that Defendants

15

unreasonably delayed adjudicating Miraj’s visa application and seeking an order to

16

compel Defendants to adjudicate her application within fifteen days or as soon as

17

reasonably possible. (Compl. ¶¶ 27, 34, 41.) Mosavi asserts causes of action for

18

unreasonable delay under the Administrative Procedure Act (“APA”) and the

19

Mandamus Act, and for deprivation of Mosavi’s Fifth Amendment due process rights.

20

(Id. ¶¶ 24–40.)

21

Rule 12(b)(6) for failure to state a claim. (Mot. 1–2.)

22

III.

Defendants now move to dismiss the Complaint pursuant to
LEGAL STANDARD

23

A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable

24

legal theory or insufficient facts pleaded to support an otherwise cognizable legal

25

theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To

26
27
28

1

Having carefully considered the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
2
All well-pleaded factual allegations are accepted as true for purposes of this Motion. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).

2

1

survive a dismissal motion, a complaint need only satisfy the minimal notice pleading

2

requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.

3

Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to

4

raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

5

550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual

6

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

7

556 U.S. at 678 (internal quotation marks omitted).

8

The determination of whether a complaint satisfies the plausibility standard is a

9

“context-specific task that requires the reviewing court to draw on its judicial

10

experience and common sense.” Id. at 679. A court is generally limited to the

11

pleadings and must construe all “factual allegations set forth in the complaint . . . as

12

true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,

13

250 F.3d 668, 679 (9th Cir. 2001) (internal quotation marks omitted). However, a

14

court need not blindly accept conclusory allegations, unwarranted deductions of fact,

15

or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988

16

(9th Cir. 2001).

17

Where a district court grants a motion to dismiss, it should generally provide

18

leave to amend unless it is clear the complaint could not be saved by any amendment.

19

See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

20

1025, 1031 (9th Cir. 2008).

21

determines that the allegation of other facts consistent with the challenged pleading

22

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture

23

Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

24

denied . . . if amendment would be futile.” Carrico v. City & County of San

25

Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).

26

IV.

Leave to amend may be denied when “the court

Thus, leave to amend “is properly

DISCUSSION

27

Defendants argue that Mosavi fails to state a claim under the APA or

28

Mandamus Act because (1) there is no specific, non-discretionary Congressional

3

1

command requiring Defendants to schedule Miraj for an interview within a certain

2

time; and (2) Defendants have not unreasonably delayed in processing Miraj’s

3

application under the framework set forth in Telecommunications Research & Action

4

Center v. F.C.C., 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). (Mot. 1–2.) Defendants

5

also contend that Mosavi fails to state a due process claim because Mosavi does not

6

have a protected interest in the processing of Miraj’s immigrant visa. (Id.)

7

A.

APA and Mandamus Act

8

Defendants first argue that Mosavi fails to state a claim under the APA or

9

Mandamus Act because there is no specific, unequivocal command placed on

10

Defendants to schedule Miraj for an interview and adjudicate her visa application

11

within a certain time. (Id. at 5–10.)

12

“Relief under the Mandamus Act and the APA are ‘virtually equivalent when a

13

petitioner seeks to compel an agency to act on a nondiscretionary duty.’” Taiebat v.

14

Scialabba, No. 17-cv-0805-PJH, 2017 WL 747460, at *4 (N.D. Cal. Feb. 27, 2017)

15

(citing Indep. Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997)). As

16

such, “where there is an adequate remedy under the APA,” the Ninth Circuit has

17

“elected to analyze a mandamus claim under the APA.”

18

No. 2:17-cv-02001-RSWL (KSx), 2017 WL 3326451, at *8 (C.D. Cal. Aug. 3, 2017)

19

(alteration omitted) (quoting R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065

20

(9th Cir. 1997)). Here, Mosavi’s APA cause of action is essentially identical to his

21

Mandamus Act cause of action, and it seeks the same relief. (See Compl. ¶¶ 24–35,

22

41.) Accordingly, the Court evaluates both under the APA legal framework.

See Cheng v. Baran,

23

Under the APA, an administrative agency is required to adjudicate “a matter

24

presented to it” within a “reasonable time.” 5 U.S.C. § 555(b). Where an agency fails

25

to do so, a “reviewing court shall . . . compel agency action unlawfully withheld or

26

unreasonably delayed.” 5 U.S.C. § 706(1). However, “a claim under § 706(1) can

27

proceed only where a plaintiff asserts that an agency failed to take a discrete agency

28

action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64

4

1

(2004); see also Vietnam Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075

2

(9th Cir. 2016) (“A court can compel agency action under this section only if there is

3

‘a specific, unequivocal command’ placed on the agency to take a ‘discrete agency

4

action,’ and the agency has failed to take that action.”).

5

At issue here, 8 U.S.C. § 1202(b) of the Immigration and Nationality Act

6

(“INA”) states that “[a]ll immigrant visa applications shall be reviewed and

7

adjudicated by a consular officer.” Mosavi alleges that, pursuant to this provision,

8

Defendants have a nondiscretionary duty to complete the adjudication of Miraj’s

9

application. (See Compl. ¶ 25.)

10

A close reading of the relevant provisions of the INA and its implementing

11

regulations, as a whole, makes clear that a visa application is not complete until an

12

applicant appears before a consular officer.

13

applying for an immigrant visa “shall make application therefor in such form and

14

manner and at such place as shall be by regulations prescribed.” 8 U.S.C. § 1202(a).

15

The Code of Federal Regulations (“Regulations”), in turn, defines “[m]ake or file an

16

application for a[n immigrant] visa” as “personally appearing before a consular officer

17

and verifying by oath or affirmation the statements contained on Form DS-230 or

18

Form DS-260 and in all supporting documents.” 22 C.F.R. § 40.1(l)(1)–(2). The

19

Regulations further provide: “When a visa application has been properly completed

20

and executed before a consular officer in accordance with the provisions of the INA

21

and the implementing regulations, the consular officer must issue the visa, refuse the

22

visa . . . or . . . discontinue granting the visa.” 22 C.F.R. § 42.81(a). Taken together,

23

these provisions provide that a visa application has not been “properly completed and

24

executed” until an applicant has “personally appear[ed] before a consular officer.”

The INA states that an individual

25

Here, Mosavi alleges the NVC confirmed that the case was “Documentarily

26

Qualified,” meaning it was ready to be scheduled for an interview, but that Defendants

27

have not yet scheduled Miraj for an interview with a consular officer. (Compl. ¶ 21;

28

Opp’n 6.) It is undisputed that Miraj has not yet appeared before a consular officer.

5

1

Thus, she has yet to execute or complete her application. To the extent § 1202(b) may

2

impose a nondiscretionary duty to adjudicate Miraj’s application, such a duty attaches

3

under the INA only after her application is complete—i.e., after she has appeared

4

before a consular officer. See Mueller v. Blinken, 682 F. Supp. 3d 528, 537 (E.D. Va.

5

2023) (concluding any duty to act on a visa application attaches only “after an

6

applicant has appeared before a consular officer” under the INA and its implementing

7

regulations); see also, e.g., Arshad v. Bitter, No. 2:23-cv-08082-FLA (BFMx),

8

2024 U.S. Dist. LEXIS 64949, at *8 (C.D. Cal. Apr. 9, 2024) (“Courts in this circuit

9

have squarely addressed this issue and determined . . . that a ‘visa application’ begins

10

at the time of the interview.”); cf. Zeynali v. Blinken, 630 F. Supp. 3d 208, 210 n.1

11

(D.D.C. 2022) (“If and when a selectee has an interview at the local consular post, it is

12

at that interview that the selectee formally makes his or her [diversity visa]

13

application. The consular officer then adjudicates the application and either issues or

14

refuses the visa.” (citations omitted) (first citing 22 C.F.R. § 40.1(l)(2); then citing

15

8 U.S.C. § 1202(b); and then citing 22 C.F.R. § 42.81(a))).

16

Accordingly, because Mosavi has not identified any “discrete agency action”

17

that Defendants are required to take at this point, Mosavi fails to state a claim under

18

the APA or the Mandamus Act. As such, the Court GRANTS the Motion on this

19

basis and does not reach Defendants’ argument concerning the TRAC factors.

20

B.

Due Process

21

Mosavi also alleges that Defendants’ failure to schedule Miraj’s interview

22

burdens his procedural and substantive due process rights protected by the Fifth

23

Amendment. (Compl. ¶¶ 36–40.)

24

“A threshold requirement to a substantive or procedural due process claim is the

25

plaintiff’s showing of a liberty or property interest protected by the Constitution.”

26

Wedges/Ledges of Cal. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (citing Bd. of

27

Regents v. Roth, 408 U.S. 564, 569 (1972)). The desire for fundamental fairness in

28

administrative proceedings is not a cognizable liberty interest when it amounts to

6

1

nothing more than a “mere expectation of receiving a benefit.” Cost Saver Mgmt.,

2

LLC v. Napolitano, No. 2:10-cv-02105-JST (CWx), 2011 WL 13119439, at *6

3

(C.D. Cal. June 7, 2011) (quoting Roberts v. Spalding, 783 F.2d 867, 870–71 (9th Cir.

4

1986)). More specifically, “a citizen does not have a fundamental liberty interest in

5

[a] noncitizen spouse being admitted to the country.” Dep’t of State v. Muñoz, 144 S.

6

Ct. 1812, 1821 (2024).
Mosavi alleges that his protected interest arises from a “statutorily created

7
8

entitlement to adjudication of his wife’s visa application.”

9

However, for the reasons discussed above, the alleged statutory right has not yet been

10

(See Compl. ¶ 38.)

triggered. Therefore, it does not give rise to a cognizable due process claim.

11

In opposing the Motion,3 Mosavi raises two additional purported protected

12

interests: the right “to have federal law equitably enforced” and an “implied

13

fundamental right to family unity.”

14

Mosavi’s argument regarding equitable enforcement of the law is indistinguishable

15

from his alleged statutory interest in the adjudication of Miraj’s visa application,

16

rejected above. It is thus not cognizable under the due process clause for the same

17

reason. Second, Mosavi’s asserted right to “family unity” is essentially a demand that

18

his “noncitizen spouse be[] admitted to the country,” which does not give rise to a

19

protected interest for the purposes of a due process claim. See Muñoz, 144 S. Ct.

20

at 1821; see also Kerry v. Din, 576 U.S. 86, 88–89 (2015) (finding denial of husband’s

21

visa application does not raise a cognizable liberty interest).

Neither suffices here.

First,

Accordingly, the Court finds that, lacking a constitutionally protected interest,

22
23

(Opp’n 25.)

Mosavi fails to raise a plausible due process claim.

24
25
26
27
28

3

On a Rule 12(b)(6) motion to dismiss, the Court is limited to the pleadings when evaluating
whether a plaintiff states a claim. See Lee, 250 F.3d at 688–89. The Court considers Mosavi’s
opposition arguments here only for the purpose of determining whether leave to amend may be
warranted.

7

V.

1
2

CONCLUSION

For the reasons discussed above, the Court GRANTS Defendants’ Motion to

3

Dismiss.

(ECF No. 10.) Because the Court finds “the allegation of other facts

4

consistent with the challenged pleading could not possibly cure the deficiency,”

5

Schreiber Distrib., 806 F.2d at 1401, the dismissal is WITHOUT LEAVE TO

6

AMEND.

7
8

IT IS SO ORDERED.

9
10
11
12
13

September 3, 2024
____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8