Jamalinia et al v. Blinken et al

Filing 21

ORDER signed by Magistrate Judge Jeremy D. Peterson on 03/06/25 GRANTING 8 Motion to Dismiss. CASE CLOSED. (Deputy Clerk VLC)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELAHE JAMALINIA, et al.,

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Plaintiffs,

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v.

Case No. 2:24-cv-0981-JDP

ORDER

MARCO RUBIO, et al.,

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Defendants.

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Plaintiffs Elahe Jamalinia and Mehrdad Moshtaghi, husband and wife, bring this action

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against Marco Rubio, in his official capacity as U.S. Secretary of State, and Robert Jachim, in his

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official capacity as Acting Director of Screening, Analysis, and Coordination, for unreasonably

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delaying adjudication of plaintiffs’ immigrant visa applications.1 The court finds that there has

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been no unreasonable delay in adjudicating plaintiffs’ visa application and thus will grant

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defendants’ motion.

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Defendants Rubio and Jachim were automatically substituted for Anthony Blinken and
Carson Wu, respectively, under Federal Rule of Civil Procedure 25(d). See Fed. R. Civ. P. 25(d);
ECF No. 17 (for defendant Jachim).
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Background
I.

Statutory and Regulatory Framework

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The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes the

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issuance of three broad categories of visas: family-based, employment-based, and diversity.

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8 U.S.C. § 1151(a). Relevant here are EB-2 visas, a subcategory of employment-based visas,

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which permit noncitizens with “extraordinary ability in the sciences, arts, education, business, or

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athletics which has been demonstrated by sustained national or international acclaim and whose

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achievements have been recognized in the field through extensive documentation . . . to enter the

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United States to continue work in the area of extraordinary ability.” 8 U.S.C. § 1153(b)(1)(A). In

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order to obtain an employment-based visa, applicants submit Form I-140, Immigrant Petition for

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Alien Worker, to the United States Citizenship and Immigration Services (“USCIS”). See id. §§

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1153(b), 1154; 8 C.F.R. § 204.5. If the application is approved, USCIS sends the petition to the

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National Visa Center (“NVC”), which contacts the noncitizen beneficiaries to collect all

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necessary documents and fees. 8 U.S.C. § 1202; 8 C.F.R. §§ 204.1(a), 204.2(d). Once the NVC

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deems the petition “documentarily complete,” and subject to availability, the NVC schedules the

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applicant for an interview with a consular officer at a U. S. embassy or consulate. See 8 U.S.C.

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§§ 1201(a)(1), 1202; 22 C.F.R. §§ 42.62, 42.63, 42.65. At the interview, the consular officer

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directs the applicant to submit either a Form DS-230 or Form DS-260. See 22 C.F.R. § 42.63(a).

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Following the interview, the consular officer must either issue the visa or refuse it under

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applicable law. 8 U.S.C. §§ 1201(g), 1361; 22 C.F.R. §§ 42.71, 42.81(a).

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The consular officer “may require the submission of additional information or question

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the alien on any relevant matter whenever the officer believes that the information provided . . . is

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inadequate to determine the alien’s eligibility to receive an immigrant visa.” 22 C.F.R.

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§ 42.63(c). Such information may be provided through Form DS-5535, Supplemental Questions

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for Visa Applicants. See 60-Day Notice of Proposed Information Collection: Supplemental

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Questions for Visa Applicants, 88 Fed. Reg. 65,418 (Sept. 22, 2023). Any additional material

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submitted is “considered part of the immigrant visa application.” 22 C.F.R. § 42.63(c). If the

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applicant produces additional evidence “tending to overcome the ground of ineligibility on which

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the refusal was based, the case shall be reconsidered.” Id. § 42.81(e).

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II.

Factual Allegations

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Plaintiffs live in Sacramento, California and hold dual nationality of the Netherlands and

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Iran. ECF No. 1 at 17. Plaintiff Jamalinia is an Earth Observation Scientist with a Ph.D in Geo-

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Engineering. Id. at 7. Plaintiff Moshtaghi is Jamalinia’s spouse and derivative beneficiary. Id.

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Jamalinia applied for an EB-2 visa, under 8 U.S.C. § 1153(b)(1)(A). Id. Jamalinia received an

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approved I-140 NIW EB-2 petition (Case Number: AMS2023528001) and submitted a DS-260

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immigrant visa application with NVC on March 6, 2023. Id. at 17-18. On December 19, 2023

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plaintiffs attended an immigration visa interview in Amsterdam, but the consular officer refused

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their application under § 221(g). Id. at 18. The consular officer asked plaintiffs to complete a

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Form DS-5535, which they did on December 20, 2023. Id.

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Despite plaintiffs’ timely DS-5535 responses, their applications have remained pending

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administrative processing since December 20, 2023. Id. at 3. Plaintiffs allege that the delays in

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adjudicating their visa applications have resulted in “financial instability.” Id. at 19. Plaintiffs

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bring two causes of actions derived from this delay. The first seeks a writ of mandamus to

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compel defendants to act upon plaintiffs’ visa application within a reasonable time pursuant to

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INA and federal regulations. Id. at 20-22. The second seeks to have the court enforce the

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Administrative Procedure Act (“APA”), 5 U.S.C. § 555(b), because defendants have

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unreasonably delayed their visa applications. Id. at 22-24.

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Legal Standards

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A. Motion to Dismiss

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“Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable

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legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Somers v.

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Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “To survive a motion to dismiss, a complaint

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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim has facial plausibility when a plaintiff “pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678.

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The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

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U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it

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appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).

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However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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B. Motion for Summary Judgment

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Summary judgment is appropriate where there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

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Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

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only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

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while a fact is material if it “might affect the outcome of the suit under the governing law.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818

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F.2d 1422, 1436 (9th Cir. 1987).

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Rule 56 allows a court to grant summary adjudication, also known as partial summary

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judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

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See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

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56 authorizes a summary adjudication that will often fall short of a final determination, even of a

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single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply to

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both a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ.

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P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

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Each party’s position must be supported by (1) citations to particular portions of materials

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in the record, including but not limited to depositions, documents, declarations, or discovery; or

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(2) argument showing either that the materials cited do not establish the presence or absence of a

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genuine factual dispute or that the opposing party cannot produce admissible evidence to support
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its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider

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materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P.

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56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see

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also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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“The moving party initially bears the burden of proving the absence of a genuine issue of

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material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

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moving party must either produce evidence negating an essential element of the nonmoving

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party’s claim or defense or show that the nonmoving party does not have enough evidence of an

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essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

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Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

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initial burden, the burden then shifts to the non-moving party “to designate specific facts

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demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

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376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 323). The nonmoving party must

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“show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson, 477 U.S. at

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252). However, the non-moving party is not required to establish a material issue of fact

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conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a

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jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc.

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v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

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The court must apply standards consistent with Rule 56 to determine whether the moving

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party has demonstrated there to be no genuine issue of material fact and that judgment is

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appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

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“[A] court ruling on a motion for summary judgment may not engage in credibility

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determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

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2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

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nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

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Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

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198 F.3d 1130, 1134 (9th Cir. 2000).

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Analysis

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Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6), or, in the

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alternative, for summary judgment under to Federal Rule of Civil Procedure 56. ECF No. 8.

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Defendants seek dismissal for three main reasons. First, defendants argue that the doctrine of

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consular nonreviewability precludes judicial review of a U. S. consular official’s decision to

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refuse a visa application of a noncitizen. Id. at 8. Second, defendants argue that they do not owe

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plaintiffs a nondiscretionary duty to reconsider, within a specific timeframe, whether the refusal

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of their visa application can be overcome. Id. at 11. And, finally, defendants argue that the four-

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month delay plaintiffs have experienced is not unreasonable under the TRAC factors. Id. at 13.

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Plaintiffs argue that the doctrine of consular nonreviewability does not preclude judicial

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review of this action because plaintiffs’ visa application has not been finally adjudicated. ECF

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No. 10 at 25. Plaintiffs next argue that they have properly alleged each element to support a

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claim for mandamus. Id. at 34. Lastly, plaintiffs assert that their APA claim is justiciable and

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that while it is premature to assess whether the delay is unreasonable, should the court consider

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the merits of the delay under the TRAC factors, that they have stated a valid claim. Id. at 55.

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A. Doctrine of Consular Nonreviewability

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The Ninth Circuit has recognized that “ordinarily, a consular official’s decision to deny a

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visa to a foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104 (9th Cir.

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2018). However, courts in this district and others have held that the doctrine does not apply

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where plaintiffs seek a final decision on their visa applications rather than judicial review of a

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consular decision. See Abbassi v. Gaudiosi, No. 1:23-CV-01573-CDB, 2024 WL 1995246, at *4

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(E.D. Cal. May 6, 2024) (citing cases); Mohamed v. Pompeo, No. 1:19-cv-01345-LJO-SKO, 2019

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WL 4734927, at *2 (E.D. Cal. Sept. 27, 2019).

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Accepting all allegations as true, the denial of plaintiffs’ visa application under INA

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§ 221(g) is not a final decision. See Kiani v. Blinken, No. CV 23-5069-GW-JCX, 2024 WL

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658961, at *5 (C.D. Cal. Jan. 4, 2024); Gonzalez v. Baran, No. 2:21-CV-05902-CAS-ASX, 2022

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WL 1843148, at *3 (C.D. Cal. Jan. 11, 2022) (“[T]he ‘administrative processing’ designation

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[under § 221(g) is] insufficient to constitute a refusal”). In the absence of Ninth Circuit precedent
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to the contraray, the court finds that the doctrine of consular nonreviewability does not bar

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plaintiffs’ claims. See Abbassi, 2024 WL 1995246, at *4 (agreeing with the “prevailing position

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among most other district courts” that the doctrine does not bar review of a visa application in

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administrative processing); Iqbal v. Blinken, No. 2:23-CV-1299-KJM-CSK, 2024 WL 3904959,

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at *7, 2024 U.S. Dist. LEXIS 151121 (E.D. Cal. Aug. 22, 2024) (“The court joins with the courts

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that have found the refusal of a visa application for administrative processing does not constitute

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a final decision.”).

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B. APA and Mandamus Act

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The INA does not set a deadline for consular officers to review and adjudicate visa

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applications, however, under the APA, defendants have a duty to act within a reasonable time.

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See 5 U.S.C. § 555. “[T]he APA and related case law provide ‘law to apply’ in determining

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whether defendants have failed to act within a reasonable time.” Khan v. Johnson, 65 F. Supp. 3d

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918, 926 (C.D. Cal. 2014). “[F]ederal courts routinely assess the ‘reasonableness’ of the pace of

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agency action under the APA.” Id. (citation omitted). Under the APA, the reviewing court must

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“compel agency action . . . unreasonably delayed[.]” 5 U.S.C. § 706(1). “A court can compel

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agency action under this section only if there is a specific, unequivocal command placed on the

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agency to take a discrete agency action, and the agency has failed to take that action.” Vietnam

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Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (internal marks and

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citation omitted). “The agency action must be pursuant to a legal obligation ‘so clearly set forth

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that it could traditionally have been enforced through a writ of mandamus.’” Id. at 1075-76

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(citation omitted).

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The Mandamus Act “provides district courts with mandamus power ‘to compel an officer

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or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.’”

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Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (quoting 28 U.S.C. § 1361).

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“Although the exact interplay between these two statutory schemes has not been thoroughly

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examined by the courts, the Supreme Court has construed a claim seeking mandamus under the

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[Mandamus Act] ‘in essence,’ as one for relief under § 706 of the APA.” Id. (quoting Japan

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Whaling Ass’n v. Am. Cetacean Society, 478 U.S. 221, 230 n.4 (1986)). “Because the relief
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sought is essentially the same, in the form of mandamus,” the court analyzes the sufficiency of

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the complaint under the APA. Id.

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In determining whether an agency action has been unreasonably delayed, courts consider
the six “TRAC” 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 should consider the effect of
expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the
court need not find any impropriety lurking behind agency lassitude
in order to hold that agency action is unreasonably delayed.

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In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138-39 (9th Cir. 2020) (quoting Telecomms.

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Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984)).

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Although not determinative, the first factor, “rule of reason,” is the most important. In re

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A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). Courts examine the length of delay and reason

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for the delay to determine “whether there is any rhyme or reason for the Government’s delay—in

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other words, whether the agency’s response time . . . is governed by an identifiable rationale.”

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Poursohi v. Blinken, No. 21-01960, 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) (internal

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marks and citation omitted). Where Congress has not supplied a period for agency action, courts

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look to case law in assessing whether the agency’s action is unreasonably delayed. See Sarlak v.

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Pompeo, No. CV 20-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020) (“Absent a

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congressionally supplied yardstick, courts typically turn to case law as a guide.”).

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In plaintiffs’ case, approximately four months elapsed between the last government action

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(when the consular officer refused plaintiffs visa application with the administrative processing

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designation on December 19, 2023) and the filing of the complaint on April 1, 2024. ECF 1.

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“[I]n the immigration context, district courts have generally found delays of less than four years

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are not unreasonable.” Iqbal v. Blinken, No. 2:23-CV-01299-KJM-CSK, 2024 WL 3904959, at

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*10 (E.D. Cal. Aug. 22, 2024) (collecting cases). This delay in this case is relatively short in the
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context of visa application processing delays, and is not considered unreasonable. See Ali v.

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Ordeman, No. 2:23-CV-02822 CKD, 2024 WL 2274912, at *6 (E.D. Cal. May 20, 2024);

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Dastagir v. Blinken, 557 F. Supp. 3d 160, 162 (D.D.C. 2021) (delay of 29 months at the point of

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filing suit after being placed in “administrative processing” following consular interview was not

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unreasonable). Thefirst factor thus weighs in defendants’ favor.

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For the second TRAC factor, the court considers whether “Congress has provided a

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timetable or other indication of the speed with which it expects the agency to proceed in the

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enabling statute[.]” In re Nat. Res. Def. Council, Inc., 956 F.3d at 1138. Congress has not

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provided a timetable for processing immigration visa applications. Cf. 8 U.S.C.

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§ 1158(d)(5)(A)(ii) (another provision of the INA requiring interviews to “commence not later

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than 45 days after the date an application is filed” for asylum cases). Rather, “Congress has given

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the State Department and other agencies wide discretion in the area of immigration processing.”

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Milligan v. Pompeo, 502 F. Supp. 3d 302, 318 (D.D.C. 2020) (internal marks and citation

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omitted). Here, there is no statutorily mandated timeline for the Department to process plaintiffs’

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visa case. See Dastagir, 557 F. Supp. 3d at 166 (noting that there is “no statutory or regulatory

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timeframe” for processing immediate family immigrant visa applications). Therefore, this factor

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is neutral. See Poursohi, 2021 WL 5331446, at *9 (“[T]he absence of a mandatory timetable for

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adjudication of Plaintiffs’ Application combined with the fact that the delay comports with the

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rule of reason, the second TRAC factor also weighs in Defendant’s favor or is at least neutral.”).

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“The third and fifth factors overlap, requiring the court to consider whether human health

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and welfare are at stake, and the nature and extent of the interests prejudiced by the delay.”

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Poursohi, 2021 WL 5331446, at *9. Plaintiffs argue that the delay has caused financial instability

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and disrupted Jamalinia’s career progression. ECF No. 10 at 50-51. “[F]inancial harms . . . ,

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along with the uncertainty that results any time an individual must continue to wait to secure a

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benefit, are insufficient to tip TRAC factors three and five in [plaintiffs’] favor.” Da Costa v.

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Immigr. Inv. Program Off., 80 F.4th 330, 345 (D.C. Cir. 2023); see also Sharifymoghaddam v.

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Blinken, No. 23-CV-1472-RCL, 2024 WL 939991, at *6 (D.D.C. Mar. 5, 2024) (recognizing

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impact of delay on plaintiffs’ career progression, but nevertheless concluding factors three and
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five are “only slightly beneficial to plaintiffs” because “the alleged adverse effects are relatively

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minor compared to other employment visa applicants”). Therefore, this factor is only slightly

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beneficial to plaintiffs.

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Under the fourth TRAC factor, the court considers the effect of expediting the

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adjudication of plaintiffs’ applications on other agency action of higher or competing priority.

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Kapoor v. Blinken, No. 21-CV-01961-BLF, 2022 WL 181217, at *8 (N.D. Cal. Jan. 20, 2022).

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This factor favors the defendants; plaintiffs are not alone in their circumstances, and ordering

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defendants to prioritize their application only further delays the resolution of other applications.

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Ali, 2024 WL 2274912, at *6, Throw v. Mayorkas, No. 3:22-CV-05699-DGE, 2023 WL 2787222,

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at *5 (W.D. Wash. Apr. 5, 2023) (noting many families face delays and ordering the State

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Department to schedule the beneficiary plaintiff’s interview would not ameliorate the situation);

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Jain v. Renaud, No. 21-CV-03115-VKD, 2021 WL 2458356, at *6 (N.D. Cal. June 16, 2021)

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(“Most courts have found that the fourth TRAC factor weighs heavily in the agency’s favor when

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a judicial order putting plaintiffs at the head of the line would simply move all others back one

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space and produce no net gain.”). The fourth factor weighs in favor of defendants.

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Under the sixth TRAC factor, where a plaintiff has not made cognizable allegations of

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impropriety, “courts in the Ninth Circuit have found this factor to either weigh in the

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government’s favor or to be neutral.” Poursohi, 2021 WL 5331446, at *11. Plaintiffs have set

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forth no such allegations, and the sixth TRAC factor weighs neutrally.

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After considering the TRAC factors, the court finds that plaintiffs’ unreasonable delay

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claims must fail. Even assuming that the allegations of the complaint are sufficient to satisfy

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factors three and five, the alleged delay cannot as a matter of law be considered unreasonable at

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this time. Plaintiffs’ circumstances are not uncommon, and courts in this circuit faced with facts

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similar to those in this case—visa delays measuring under two years while placed in

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administrative processing—have consistently held that the lawsuits fail under the TRAC factors.

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Ali, 2024 WL 2274912 at *7 (14-month delay), Morales v. Mayorkas, 23-cv-1758 BEN-MSB,

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2024 WL 2884554 (S.D. Cal. June 7, 2024) (17-month delay); Abassi v. Gaudiosi, 1:23-cv-

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01573-CDB, 2024 WL 1995246 (E.D. Cal. May 6, 2024) (12-month delay); Tenorio v. Bitter, No.

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23-cv-1581-KK-SHKX, 2024 WL 2873754 (C.D. Cal. May 1, 2024) (17-month delay).

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As set forth above, a claim seeking mandamus under the Mandamus Act closely

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resembles one for relief under § 706 of the APA. Japan Whaling Ass’n, 478 U.S. at 230 n.4.

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Because an adequate remedy exists under the APA, the court has analyzed plaintiffs’ claim of

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delay under the APA only. See Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022). For the reasons

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set forth above, the court also grants defendants’ motion as to the Mandamus Act claim.

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Accordingly, it is hereby ORDERED that:

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1. Defendant’s motion to dismiss and for summary judgment, ECF No. 8, is GRANTED.

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2. Judgment is entered in defendants’ favor.

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3. The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:
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March 6, 2025
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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