RAHMAN v. BLINKEN et al

Filing 12

MEMORANDUM OPINION re. 11 Order on Motion to Dismiss. Signed by Judge James E. Boasberg on 1/17/2023. (lcjeb3)

Case 1:22-cv-02732-JEB Document 12 Filed 01/17/23 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HABIBUR RAHMAN,
Plaintiff,
v.

Civil Action No. 22-2732 (JEB)

ANTONY J. BLINKEN, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff Habibur Rahman is a Bangladeshi citizen who awaits a decision on his
application for an F-1 visa, which he needs in order to enter the United States and enroll in a
Master of Business Administration degree program. He contends that the eleven months that he
has waited for his visa to be issued or finally refused constitutes an unlawful delay and asks the
Court to order the Government Defendants — a group of officials across several federal agencies
— to act. Defendants now move to dismiss. Because the Court finds that a decision on
Rahman’s visa application has not been unreasonably delayed, it will grant the Motion.
I.

Background
The Court begins with an overview of the process for obtaining an F-1 visa and then turns

to the background of Plaintiff’s claims and the procedural history of the case.
The F-1 visa is a nonimmigrant “Academic Student” visa that allows a foreign citizen to
travel to the United States as a full-time student in an accredited educational program. See U.S.
Citizenship and Immigr. Servs., Students and Employment, bit.ly/3H4odBd
[https://perma.cc/NE5V-X3Z4]; 8 U.S.C. § 1101(a)(15)(F). As the F-1 visa is a nonimmigrant

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visa, F-1 visitors return to their country upon completion of their program. Id.; see also
generally Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 50 F.4th 164, 170–71
(D.C. Cir. 2022).
To obtain an F-1 visa, an applicant must complete an in-person interview with a consular
officer. See 8 U.S.C. § 1202(h) (“[T]he Secretary of State shall require every alien applying for
a nonimmigrant visa” to appear for an interview.). Following such interview, a consular officer
“must issue the visa, refuse the visa, or,” in circumstances inapplicable here, “discontinue
granting the visa.” 22 C.F.R. § 41.121(a). The officer need only make an initial, rather than a
final, determination about an applicant’s visa eligibility. In other words, under § 221(g) of the
Immigration and Nationality Act (INA), an officer can temporarily refuse to issue a visa in order
to allow for further administrative processing of an applicant’s case if the officer needs more
information or time to determine eligibility. See 8 U.S.C. § 1201(g); U.S. Dep’t of State,
Administrative Processing Information (last visited Jan. 13, 2023), https://bit.ly/2GO3jEg
[https://perma.cc/NK8K-9U8H]. The Department of State publishes visa-application statuses
online. As relevant here, beginning in March 2020, the Department changed its website to
display the status of applications undergoing further administrative processing as “refused.”
U.S. Dep’t of State, Visas: CEAC Case Status Change (March 5, 2020), https://bit.ly/3DkqCWP
[https://perma.cc/K8XQ-F6UY] (Status Change Memo). This reporting change in such
circumstances reflects “no change in such applicants’ actual cases.” Id.
Plaintiff is a Bangladeshi national who requires an F-1 visa to enroll in an American
MBA program. See ECF No. 1 (Compl.) at 9, ¶¶ 1–2. He interviewed for the visa at the U.S.
Embassy in Bangladesh and thus completed his application in January 2022. Id. at 9, ¶ 7. Since
then, his application has remained in administrative processing. Id. at 10, ¶ 12. Believing that

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Defendants have unreasonably delayed the processing of his visa, Rahman brings this action
under the Mandamus Act against nine officials across the Departments of State, Justice, and
Homeland Security. Id. at 6, ¶¶ 11–20; 11, ¶¶ 32–35. He notes the emotional distress that the
delay has already caused him and emphasizes that he will suffer additional distress, along with
professional and financial harm, if a decision is further delayed. Id. at 10, ¶¶ 13–16. The
Government now moves to dismiss. See ECF No. 7 (MTD).
II.

Legal Standard
Defendants’ Motion to Dismiss invokes Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). When a defendant files a Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction, the plaintiff generally “bears the burden of establishing jurisdiction by a
preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C.
2020) (quoting Didban v. Pompeo, 435 F. Supp. 3d 168, 172–73 (D.D.C. 2020)); see Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Court “assume[s] the truth of all material
factual allegations in the complaint and ‘construe[s] the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)).
To survive a motion to dismiss under Rule 12(b)(6), conversely, a complaint must “state
a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552
(2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, id. at 555, “a complaint must contain sufficient factual matter, [if] accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). While a plaintiff may survive a Rule 12(b)(6) motion even

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if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 556 (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a
right to relief above the speculative level.” Id. at 555.
III.

Analysis
As a threshold matter, the Court notes that the underlying facts here are nearly identical

to those in Khan v. Blome, No. 22-2422, 2022 WL 17262219 (D.D.C. Nov. 29, 2022), and
Sawahreh v. United States Dep’t of State, No. 22-1456, 2022 WL 4365746 (D.D.C. Sept. 21,
2022), cases in which this Court recently dismissed other student-visa applicants’ undue-delay
claims under the APA. Rahman brings this action under the Mandamus Act, but “[t]he standard
for undue delay under the Mandamus Act [in this context] . . . is identical to the APA standard.”
Kangarloo v. Pompeo, 480 F. Supp. 3d 134, 142 (D.D.C. 2020). And there is no relevant
difference between the student visa Plaintiff seeks here (the F-1, the general student visa) and
those that the plaintiffs in those cases sought (the J-1, for funded educational-exchange
programs); both require the same consular-interview process.
In those cases, this Court rejected two threshold arguments that the Government had
raised — namely, that plaintiffs lacked standing and that consular administrative-processing
decisions are non-reviewable. Apparently undeterred, Defendants raise those same preliminary
assertions here. The Court assumes that Defendants wish to maintain those positions for the sake
of consistency or to preserve the record, but it will nonetheless adhere to its prior rulings and
reject those contentions again.
First, for the reasons articulated in Khan, the Court holds that Plaintiff has standing. See
2022 WL 17262219, at *3. Just as there, Plaintiff seeks to vindicate a procedural right to
reasonably expeditious agency action that is tethered to his concrete professional and financial

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interest in earning an advanced degree. See id. Defendants “urge the Court to reconsider that
view,” but proffer substantially the same arguments that the Court has already discarded. See
ECF No. 10 (Reply) at 3; compare id. at 3–4, with Khan, 2022 WL 17262219, at *3.
Second, for the reasons articulated in Sawahreh and reaffirmed in Khan, the Court again
concludes that the consular non-reviewability doctrine does not bar review of undue-delay claims
related to visas mired in administrative processing. See Khan, 2022 WL 17262219, at *2;
Sawahreh, 2022 WL 4365746, at *3–4. “As [Plaintiff’s] case remains in administrative
processing and has not been finally refused, the doctrine of consular non-reviewability is
inapplicable to this claim, as Plaintiff does not seek review of any decision but instead of the
Government’s failure to decide.” Khan, 2022 WL 17262219, at *2 (quoting Sawahreh, 2022 WL
4365746, at *3–4). Defendants recognize that this Court has concluded as much and fail to offer
a fresh reason to reconsider that conclusion. See Reply at 6.
The Government’s remaining and principal arguments are that Plaintiff fails to state a
claim for unreasonable delay and has sued officials who cannot provide relief. Because the
Court agrees with the former, it may skip the latter.
The thrust of Rahman’s suit is that Defendants have unreasonably delayed the
adjudication of his application for an F-1 visa because they have been sitting on it for eleven
months. He contends that such delay is unreasonable within the meaning of the APA, thus
justifying mandamus relief. See Compl. at 3–4, ¶¶ 4–5; see also Kangarloo, 480 F. Supp. 3d at
142 (noting that in this context undue-delay standard under Mandamus Act is same as under
APA). Defendants rejoin that any delay in processing Rahman’s application is not yet
unreasonable. The Court agrees.

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To evaluate the reasonableness of agency delay, the Court examines six factors set out in
Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984):
(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.
Id. at 80 (internal quotation marks and citations omitted); see also Mashpee Wampanoag Tribal
Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). These six factors “are not
‘ironclad,’ but rather are intended to provide ‘useful guidance in assessing claims of agency
delay.’” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting TRAC, 750
F.2d at 80). “Each case must be analyzed according to its own unique circumstances,” as each
“will present its own slightly different set of factors to consider.” Air Line Pilots Ass’n, Int’l v.
Civ. Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir. 1984). Whether a delay is unreasonable
“cannot be decided in the abstract, by reference to some number of months or years beyond
which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the
complexity of the task at hand, the significance (and permanence) of the outcome, and the
resources available to the agency.” Mashpee, 336 F.3d at 1102.
It is appropriate to resolve this issue at the motion-to-dismiss stage because “this record
contains enough facts to evaluate the TRAC factors now.” Sarlak v. Pompeo, No. 20-35, 2020

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WL 3082018, at *5–6 (D.D.C. June 10, 2020) (collecting cases and evaluating TRAC factors on
motion to dismiss); see also Dastagir v. Blinken, 557 F. Supp. 3d 160, 168–69 (D.D.C. 2021);
Zandieh v. Pompeo, No. 20-919, 2020 WL 4346915, at *8 (D.D.C. July 29, 2020).
The considerations contemplated by the TRAC factors can be grouped into four basic
inquiries. “First, is there any rhyme or reason — congressionally prescribed or otherwise — for
[an agency]’s delay (factors one and two)? Second, what are the consequences of delay if the
Court does not compel the [agency] to act (factors three and five)? [Third], how might forcing
the agency to act thwart its ability to address other priorities (factor four)?” Ctr. for Sci. in the
Pub. Int. v. U.S. Food & Drug Admin., 74 F. Supp. 3d 295, 300 (D.D.C. 2014). Finally, is the
delay intentional or due to any impropriety on the part of the agency (factor six)?
The only salient factual difference between this case and Sawahreh is that even less time
has passed without a decision here. See 2022 WL 4365746, at *1 (decision delayed by fifteen
months, as opposed to eleven here); see also Kahn, 2022 WL 17262219, and *2 (analyzing
seven-month delay the same way). The Court will thus rely on its reasoning in Sawahreh in
assessing the TRAC factors. As the Court explained in that case, the first two factors favor
Defendants because “[d]istrict courts have generally found that immigration delays in excess of
five, six, seven years are unreasonable, while those between three to five years are often not
unreasonable.” Sawahreh, 2022 WL 4365746, at *5 (quoting Sarlak, 2020 WL 3082018, at *6
(citation omitted) (collecting cases)). Here, recall that Rahman has been waiting for only eleven
months. By contrast, factors three and five favor Plaintiff because of the emotional and
professional harm that this delay inflicts upon him. The fourth factor carries the most weight
here, as courts have held it does in most cases, and favors Defendants. See Milligan v. Pompeo,
502 F. Supp. 3d 302, 319 (D.D.C. 2020). “Plaintiff’s application is delayed because of

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‘resource-allocation decisions’ that ‘do not lend themselves to judicial reordering[s] [of] agency
priorities.’” Sawahreh, 2022 WL 4365746, at *6 (alteration in original) (quoting Milligan, 502
F. Supp. 3d at 319). Finally, as Rahman does not allege that this delay is intentional or due to
any impropriety, see generally Compl., “the good faith of the agency in addressing the delay
weighs against equitable relief.” Milligan, 502 F. Supp. 3d at 319 (internal quotation marks
omitted). As a result, just as in Sawahreh and Kahn, “[t]he balance of these factors currently tilts
against the Court’s intervention in this case.” Sawahreh, 2022 WL 4365746, at *7.
The Court nonetheless “recognizes that the delay is substantial and imposes hardship on
Plaintiff[], and it encourages the Government to act on the application as soon as possible.”
Didban, 435 F. Supp. 3d at 177.
IV.

Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A

separate Order so stating will issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 17, 2023

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