Gonzalez v. Deputy Chief of Mission, U.S. Embassy in Saudi Arabia et al

Filing 12

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 9 ): Defendants' Motion to Dismiss (Doc. 9 ) is GRANTED. Plaintiff's Complaint (Doc. 1 ) is DISMISSED under Rule 12(b)(6) for failure to state a claim. This case is TERMINATED from the Court's docket. IT IS SO ORDERED. Signed by Judge Matthew W. McFarland on 06/05/2024. (kaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI

Case No. 1:23-cv-547

JOYCE JOCELYN GONZALEZ,
Plaintiff,

Judge Matthew W. McFarland

V.

DENISON OFFUTT, Deputy Chief of
Mission, U.S. Embassy in Saudi Arabia, et
al.,
Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. 9)

This matter is before the Court on Defendants' Motion to Dismiss (Doc. 9). Plaintiff
filed a Response in Opposition (Doc. 10), to which Defendants filed a Reply in Support
(Doc. 11). Thus, this matter is ripe for the Court's review. For the reasons below,
Defendants' Motion to Dismiss (Doc. 9) is GRANTED.
FACTS

In September 2021, Plaintiff, a U.S. Citizen, filed an I-129F Petition for Alien Fiance
with the United States Citizenship and Immigration Service ("USCIS") for her non-citizen
fiance. (Compl., Doc. 1, ,r,r 10, 16.) USCIS approved the petition in January 2021. (Id. at ,r
17.) In April 2023, the U.S. Embassy in Saudi Arabia interviewed Plaintiff's fiance as a
part of the subsequent processing for his visa application. (Id. at ,r 19.) Following, USCIS
refused Plaintiff's fiance' s application under § 221(g) of the Immigration and Nationality
Act ("INA") and placed it in administrative processing. (Id. at

,r,r 20-21.) While USCIS

has taken no further steps to adjudicate Plaintiff's fiance's application, USCIS continues
to retain jurisdiction over it. (Id. at

,r,r 4, 22.) And, though Plaintiff and her fiance have

inquired as to the status of the application, they have received "no meaningful
responses." (Id. at ,r 22.)
USCIS' delay in adjudicating Plaintiff's fiance' s visa application has caused
Plaintiff to suffer personal and financial hardships. (Comp!., Doc. 1,

,r,r

6-9.) Plaintiff

experiences anxiety and depression over the matter, which impact's Plaintiff's son. (Id. at

,r

7.) And, the delay has impacted the couple's relationship by, among other things,

creating uncertainty on their ability to have children. (Id. at

,r

8.) Because of this

uncertainty, Plaintiff has invested and may continue to invest in fertility treatment. (Id. at

,r 9.) Further, the delay is impacting both Plaintiff and her finance's employment. (Id. at

,r 8.)
On August 31, 2023, Plaintiff sued Denison Offutt, the Deputy Chief of Mission for
the United States Embassy in Saudi Arabia, and Antony Blinken, the Secretary of the
United States Department of State. (See Comp!., Doc. 1.) Plaintiff brings claims for
unreasonable delay under the Administrative Procedure Act ("APA"), mandamus relief,
and a due process violation under the Fifth Amendment. (Id. at ,r,r 23-39.)
LAW & ANALYSIS

Defendants move to dismiss Plaintiff's claims under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). (Motion to Dismiss, Doc. 9.) The Court will first consider
Defendants' Motion as it applies to Rule 12(b)(l).

2

I.

Motion to Dismiss Under Rule 12(b)(1)
Defendants first argue that this Court lacks subject matter jurisdiction over

Plaintiff's APA and mandamus relief claims. (Motion to Dismiss, Doc. 9, Pg. ID 52-57.)
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim for
lack of subject-matter jurisdiction by raising a facial attack or a factual attack. Golden v.
Garno. Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). Defendants bring a facial attack. (See

Motion to Dismiss, Doc. 9.) A facial attack "questions merely the sufficiency of the
pleading" in alleging subject-matter jurisdiction, and the Court takes the allegations
raised in the complaint as true. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d
320, 330 (6th Cir. 2007). The plaintiff bears the burden of proving that jurisdiction is
proper. Cob Clearinghouse Corp. v. Aetna U.S. Healthcare, Inc., 362 F.3d 877, 881 (6th Cir.
2004) (citing Lujan v. Defs. ofWildlife, 504 U.S. 555,561 (1992)).
"When a petitioner seeks both mandamus relief and relief under the APA, courts
apply the same principles and standards [] to determine jurisdiction." Nelson v. United
States, 107 F. App'x 469, 471 (6th Cir. 2004). To invoke jurisdiction under the APA, a

plaintiff must show that (1) an agency had a nondiscretionary duty to act and (2) the
agency unreasonably delayed in acting on that duty. See Garcia v. United States Dep't of
Homeland Sec., 25 F.4th 430, 441-42 (6th Cir. 2022) (citations omitted). "Mandamus

jurisdiction is available only if (1) the plaintiff has exhausted all available administrative
appeals and (2) the defendant owes the plaintiff a 'clear nondiscretionary duty' that it has
failed to perform." Your Home Visiting Nurse Servs. v. Sec'y of HHS, 132 F.3d 1135, 1141
(6th Cir. 1997) (citation omitted). "Thus, for jurisdiction to lie under both the APA and

3

Mandamus Act, DPlaintiff must show that USCIS owed a non-discretionary duty to [her]
and that it failed to act upon this duty." Muminov v. Sessions, No. 1:18-CV-1034, 2018 U.S.
Dist. LEXIS 183479, at *9 (N.D. Ohio Oct. 24, 2018). Defendants raise issue with both
prongs. (See Motion to Dismiss, Doc. 53-57.)
a. N ondiscretionary Duty

Defendants first argue that this Court lacks subject matter jurisdiction over
Plaintiff's APA and Mandamus Act claims because Defendants do not have a
nondiscretionary duty to act. (Motion to Dismiss, Doc. 8, Pg. ID 53-57.) In response,
Plaintiff maintains that Defendants-through USCIS-have a nondiscretionary duty to
adjudicate Plaintiff's fiance' s visa application within a reasonable time. (Response, Doc.
10, Pg. ID 74-76.)
The Sixth Circuit has not addressed whether USCIS has a nondiscretionary duty
to timely act on visa applications generally. And, as discussed below, courts within this
circuit have reached varying conclusions on whether such a duty exists. In reaching their
conclusions, courts appear to consider the type of application at issue and its associated
statutory or regulatory language.
For example, this Court has determined that USCIS has a duty to act on a visa
application that was initiated by an I-130 Petition for Alien Relative. Alwan v. Risch, No.
2:18-CV-0073, 2019 U.S. Dist. LEXIS 53692, at *6-7 (S.D. Ohio Mar. 29, 2019). In reaching
this conclusion, the Court relied on 22 C.F.R.

§

42.81(a), which states that "when a visa

application has been properly completed and executed before a consular officer ... , the
consular office must either issue or refuse the visa." Because the regulation states that a
4

consular office must act, the Court found that USCIS had a nondiscretionary duty to act
on the relevant visa application. Alwan, 2019 U.S. Dist. LEXIS 53692, at *7.
Also relevant are courts' varying conclusions on the duty to act on an I-485
Application to Register Permanent Residence or Adjust Status. Some courts in this circuit
have found that there is no duty to act on an I-485 visa application within a reasonable
time. See, e.g., Yongli Xu v. Gonzales, No. C-3-07-203, 2007 U.S. Dist. LEXIS 71038, at *18
(S.D. Ohio Sept. 25, 2007). Those courts base their finding on statutory language that
affords the Attorney General discretion to adjust the status of an alien. Id. at *16-18; see 8
U.S.C. § 1159(n) (An alien's status may be adjusted "in the Secretary's or the Attorney
General's discretion."); 8 U.S.C. § 1255(a) (An alien's status may be adjusted by "the
Attorney General, in his discretion."). Though, other courts have found that this
discretionary language refers only to the Attorney General's "ultimate decision on the
merits of an I-485 application." Tang v. Chertoff, No. 07-203, 2007 U.S. Dist. LEXIS 64022,
at *12 (E.D. Ky. Aug. 29, 2007). Under this interpretation, some courts have determined
that there is a duty to act on an I-485 application within a reasonable time. See, e.g., id. at
*12 (" [USCIS] has a non-discretionary duty to reach its decision on an I-485 application,
whatever that decision may be, within a reasonable time.").
Like the aforementioned visa applications, statutory and regulatory language
provide guidance on the duty to act on the application at issue here. The INA "governs
visa processing and 'confers upon consular officers [the] exclusive authority to review
applications for visas."' Al·wan, 2019 U.S. Dist. LEXIS 53692, at *6 (quoting Saavedra Bruno

v. Albright, 197 F.3d 1153, 1156 (D.D.C. 1999)). "A consular office is required by law to act
5

on visa applications." Id. (quoting Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997)).
"Likewise, 22 C.F.R. § 42.81(a) mandates that 'when a visa application has been properly
completed and executed before a consular officer in accordance with the provisions of
the INA and the implementing regulations, the consular office must either issue or refuse
the visa."' Id. at *6-7. Based on this mandatory language, as well as the requirement that
agencies conclude matters presented to them "within a reasonable time" pursuant to 5
U.S.C. § 555(b), USCIS has a nondiscretionary duty to act on Plaintiff's fiance's visa
application within a reasonable time. See id.; see also Tang, 2007 U.S. Dist. LEXIS 64022, at
*10-12.
The case cited by Defendant in opposition does not change this Court's finding.
(See Motion to Dismiss, Doc. 9, Pg. ID 56-57.) In Beshir, the District Court for the District

of Columbia found that there was no duty to act on an 1-485 visa application within a
reasonable time. See Beshir v. Holder, 10 F. Supp. 3d 165, 173 (D.D.C. 2014). Like some
courts in the Sixth Circuit, the Beshir court relied on the discretionary language related to
the Attorney General's power to adjust an alien's status. See id. However, the case at bar
is distinguishable. Not only is the application here different, but Defendants have not
pointed to any statutes or regulations associated with this type of application with the
same discretionary language. (See Motion to Dismiss, Doc. 9.)
USCIS has a nondiscretionary duty to act on Plaintiff's fiance' s visa application
within a reasonable time. The first jurisdictional requirement has therefore been met.
b. Failure to Act

Next, Defendants maintain that, even if there is a duty to act on Plaintiff's fiance's
6

visa application, USCIS has done so through its refusal of the application under§ 122(g)
of the INA. (Motion to Dismiss, Doc. 9, Pg. ID 56-57.) This argument sounds in the
doctrine of consular nonreviewability, which "holds that a consular official's decision to
issue or withhold a visa is not subject to judicial review, at least unless Congress says
otherwise." Saavedra Bruno, 197 F.3d at 1159; see also Kleindienst v. Mandel, 408 U.S. 753,
769-70 (1972). In response, Plaintiff maintains that the refusal was not a final decision by
USCIS because, following refusal, the application was immediately placed in
administrative processing for further review. (Response, Doc. 10, Pg. ID 77-79.)
The Sixth Circuit has not addressed whether consular nonreviewability applies to
a refusal of a visa application under§ 122(g). And, courts within this circuit have reached
differing conclusions on the issue. Cf Saad v. Risch, No. 18-CV-12074, 2019 U.S. Dist.
LEXIS 137781, at *4-8 (refusal under § 221(g) was a final determination on visa
application); Alwan, 2019 U.S. Dist. LEXIS 53692, at *2-7 (visa application placed in
administrative processing not final decision). These courts, however, did not articulate
their reasoning for reaching contrasting conclusions.
Fortunately, decisions from outside of this circuit provide guidance. The District
Court for the District of Colombia has found that the refusal of a visa application under
§ 122(g) is not a final decision when that application is later placed in administrative
processing. See Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the
United States v. Kerry, 168 F. Supp. 3d 268, 283 (D.D.C. 2016). In reaching this conclusion,

the court considered the Departments of State and Homeland Security's practices and
statements about administrative processing. Id. at 284-86. The Departments therein
7

identified administrative processing as a required and intermediary step in the visa
application process. Id. The court also considered the fact that visas placed in
administrative processing-unlike those that were completely denied-are not reported
to Congress. Id. at 289. Relying on this information, the court concluded that a refusal
under § 122(g) was not a final decision when the visa application was later placed in
administrative processing. Id. at 291. In turn, the doctrine of consular nonreviewability
did not apply. Id.
The Court finds the District Court for the District of Columbia's reasoning in Nine

Iraqi persuasive. Though USCIS refused Plaintiff's fiance' s visa application under §
122(g), it immediately placed it in administrative processing for further review. (Compl.,
Doc. 1,

,r

20.) "It is reasonable to infer that under this process that [the] forthcoming

decision is actually the final adjudication of [the] visa application, and not a readjudication." Kiani v. Blinken, No. 23-CV-5069, 2024 U.S. Dist. LEXIS 33887, at *15 (C.D.
Cal. Jan. 4, 2024). The secondary materials discussed in the Nine Iraqi decision only
reinforce that inference. See Nine Iraqi, 168 F. Supp. 3d at 284-86. In turn, because
Plaintiff's fiance has yet to receive a final adjudication on his application, the consular
nonreviewability doctrine does not apply. Thus, the second jurisdictional prong has been
met.
*

*

*

This Court has subject matter jurisdiction over Plaintiff's AP A and mandamus
relief claims. Defendants-through USCIS-have a nondiscretaionary duty to act on
Plaintiff's fiance' s visa application within a reasonable time. Defendants have failed to do

8

so. Thus, the jurisdictional requirements of the AP A and Mandamus Act have been met
and this Court has subject matter jurisdiction over these claims.
II.

Motion to Dismiss Under Rule 12(b)(6)

Having found jurisdiction over this matter, the Court now turns to Defendant's
motion to dismiss this case under Rule 12(b)(6). (Motion to Dismiss, Doc. 9, Pg. ID 57-67.)
The Federal Rules of Civil Procedure allow, upon motion, the dismissal of a complaint
for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A
Rule 12(b)(6) motion to dismiss tests the plaintiff's cause of action as stated in a complaint.
Golden, 404 F.3d at 958. A claim for relief must be "plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). That is, the complaint must lay out enough facts for a

court to reasonably infer that the defendant wronged the plaintiff. 16630 Southfield Ltd.
P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013). Courts accept all allegations

of material fact as true and must construe such allegations in the light most favorable to
the plaintiff. Twombly, 550 U.S. at 554-55; Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018).
However, courts are not bound to do the same for a complaint's legal conclusions.
Twombly, 550 U.S. at 555.

As noted above, Plaintiff brings claims for unreasonable delay under the
Administrative Procedure Act, mandamus relief, and due process violation under the
Fifth Amendment. (Compl., Doc. 1, ,r,r 23-39.) Defendants move to dismiss all of these
claims. (See Motion to Dismiss, Doc. 9, Pg. ID 57-67.) The Court will consider each claim
in tum.

9

a. APAClaim

First, the Court considers Plaintiffs unreasonable delay claim under the APA. (See
Compl., Doc. 1, ,r,r 23-27.) Defendants argue that this claim should be dismissed because
Plaintiff has not alleged an unreasonable delay. (Motion to Dismiss, Doc. 9, Pg. ID 58-66.)
The APA allows the Court to compel agency action that has been "unlawfully
withheld or unreasonably delayed." 5 U.S.C. § 706(1). To determine whether an agency's
delay in taking required action is unreasonable, the Court applies a six-factor test. See
Garcia, 25 F.4th at 451-52 (quoting Telecomms. Rsch. & Action Ctr. v. FCC ("TRAC"), 750

F.2d 70, 80 (D.C. Cir.1984)). The Sixth Circuit has described these TRAC factors as follows:
(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.

Plaintiff maintains that the Court cannot consider the TRAC factors at the pleading
stage. (Response, Doc. 10, Pg. ID 79-80.) To be sure, "[a] claim of unreasonable delay is

10

necessarily fact dependent and thus sits uncomfortably at the motion to dismiss stage."
Garcia, 25 F.4th at 451 (quotation omitted). That said, courts within this circuit have

routinely considered the TRAC factors at the motion-to-dismiss stage when the pleadings
provide enough information to analyze the relevant factors. See, e.g., Preston v. Ky.
Consular Ctr., No. 6:22-CV-15, 2022 U.S. Dist. LEXIS 150019, at *59-75 (E.D. Ky. Aug. 22,

2022) (considering TRAC factors at motion-to-dismiss stage); Telukunta v. Mayorkas, No.
2:21-CV-10372, 2021 U.S. Dist. LEXIS 111676, at *4-8 (E.D. Mich. June 15, 2021) (same); Cf
Escalona v. United States Dep't of Homeland Sec., No. l:20-CV-613, 2021 U.S. Dist. LEXIS

234020, at *16-18 (W.D. Mich. Aug. 23, 2021) ("The Court anticipates that some discovery
may be required to fully vet the considerations the TRAC factors raise."). As shown
below, Plaintiff's Complaint (Doc. 1) contains sufficient facts to permit this Court to
consider the TRAC factors at the pleadings stage. The Court will consider the TRAC
factors accordingly.
Factors One and Two. "The first TRAC factor- that the time agencies take to make

decisions must be governed by a rule of reason-is considered the most important."
Ebrahimi v. Bitter, No. 3:22-CV-788, 2023 U.S. Dist. LEXIS 98199, at *13 (M.D. Tenn. June

6, 2023) (citation omitted). The second TRAC factor asks whether Congress has provided
a timetable that "may supply content for this rule of reason." TRAC, 750 F.2d at 80. The
Court may review these factors in tandem. Ebrahimi, 2023 U.S. Dist. LEXIS 98199, at *13.
"The inquiry centers on whether the agency's response time ... is governed by an
identifiable rationale." Ebrahimi, 2023 U.S. Dist. LEXIS 98199, at *13 (citation omitted).
"[T]he State Department employs a 'first-in, first-out' methodology for processing visa
11

applications, and courts have uniformly concluded that this methodology satisfies the
rule of reason." Id. (collecting cases).
Nevertheless, Plaintiff argues that 8 U.S.C. § 1571(b) mandates a 180-day window
for USCIS to adjudicate a visa application, which has not been met for Plaintiff's fiance' s
application. (Response, Doc. 10, Pg. ID 82-84.) This argument lacks merit. Section 1571(b)
states that "[i]t is the sense of Congress that the processing of an immigration benefit
application should be completed not later than 180 days after the initial filing." As several
courts have found, this provision "lacks any compulsory language to interpret it as a legal
requirement." Telukunta, 2021 U.S. Dist. LEXIS 111676, at *5-6 (collecting cases). Thus, the
Court cannot give§ 1571(b)'s timeline binding effect here.
That said, "courts often look to the length of delay as a rough yardstick to
determine whether the first-in, first out rule is actually being applied." Ebrahimi, 2023 U.S.
Dist. LEXIS 98199, at *14. "[T]he question is not whether a length of time is unfair in some
loose, equitable sense, but rather whether the delay is caused by a rule of reason and the
resources available to the agency." Id. at *16 (citation omitted). Plaintiff has not alleged
any facts suggesting that the first-in, first-out rule is not being applied to her fiance's
application. (See Compl., Doc. 1.) And, courts in this circuit have provided greater
flexibility to the time to adjudicate visa applications filed during the COVID era. See

Ebrahimi, 2023 U.S. Dist. LEXIS 98199, at *14 (collecting cases). Plaintiff filed her I-129F
petition in September 2021. (Compl., Doc. 1, ,r 2.) So, the delay here is not unreasonable,
"particularly given the inference of a global pandemic and the State Department's efforts
to deal with the resulting backlog of visa applications." Id.; see also Hosseini v. Napolitano,
12

12 F. Supp. 3d 1027, 1035 (E.D. Ky. Apr. 3, 2014) ("[C]ourts have found delays of four
years or less to be reasonable.").
Thus, the first and second TRAC factors favor Defendants.
Factors Three and Five. The third and fifth TRAC factors address the delay' s effect

on the visa applicant. Under the third factor, the Court must consider that "delays that
might be reasonable in the sphere of economic regulation are less tolerable when human
health and welfare are at stake." TRAC, 750 F.2d at 80. The fifth factor "take[s] into
account the nature and extent of the interests prejudiced by delay." Id. The analysis of
these factors often overlaps. Telukunta, 2021 U.S. Dist. LEXIS 111676, at *6 (citation
omitted).
Plaintiff asserts that the delay in the adjudication of her fiance' s visa application
has harmed both her professional and personal life. (Response, Doc. 10, Pg. ID 84.)
Plaintiff "may be forced into expensive fertility treatment ... , her mental health has been
materially harmed, and her career prospects are threatened because of her declining
mental health." (Id.)
While the Court acknowledges the seriousness of Plaintiff's alleged hardships,
they "are interests shared by virtually every applicant whose visa application has been
delayed." Ebrahimi, 2023 U.S. Dist. LEXIS 98199, at *17. Visa processing "is inherently a
zero-sum game, as processing one category of immigrant visas necessarily results in the
diminished resources for processing another category of visas." Preston, 2022 U.S. Dist.
LEXIS 150019, at *69 (quotation omitted). Resultantly, Plaintiff's hardships "do not weigh
strongly or override the others that weigh against [her], particularly in light of the fact
13

that bumping [Plaintiff's fiance] to the head of the line would simply increase the delay
for someone else in a similar personal, financial, and political situation." Ebrahimi, 2023
U.S. Dist. LEXIS 98199, at *17.
Because Plaintiff's situation presents health and welfare stakes, but the requested
remedy "functions to the detriment of other [] visa applicants," the Court finds that
factors three and five are neutral. Preston, 2022 U.S. Dist. LEXIS 150019, at *70; see also
Mashpee Wamanag Tribal Council, Inc., 336 F.3d 1094, 1100 (D.C. Cir. 2003) ("[W]e refused

to grant relief, even though all the other factors considered in TRAC favored it, where a
judicial order putting the petitioner at the head of the queue would simply move all
others back one space and produce no net gain.").

Factor Four. The fourth TRAC factor requires the Court to "consider the effect of
expediting delayed action on agency activities of a higher or competing priority." TRAC,
750 F.2d at 80. "The practical effect of granting Plaintiff relief would allow her [fiance] to
cut to the front of an already-long line of visa applicants." Telukunta, 2021 U.S. Dist. LEXIS
111676, at *7. "Allowing Plaintiff['s fiance] to cut the line would create a zero-sum game
that delays the adjudication of visa applicants already ahead of Plaintiff['s fiance] in the
queue." Id. (citing Patel v. Cuccinelli, No. 6:20-CV-101, 2021 U.S. Dist. LEXIS 3793, at *10
(E.D. Ky. Jan. 8, 2021) ("Moving any application to the front of any line for processing
would necessarily move others in that line back a space.")). "Indeed, the Sixth Circuit has
declined to find unreasonable delay due to a 'general backlog' of visa applications and
noted that 'plaintiffs cannot jump the line by simply requesting mandamus or other
relief."' Id. (quoting Hussein v. Beecroft, 782 F. App'x 437, 443-44 (6th Cir. 2019)). Thus, the
14

fourth TRAC factor favors Defendants.
Factor Six. The sixth TRAC factor notes that the Court "need not find any
impropriety lurking behind agency lassitude in order to hold the agency action is
unreasonably delayed." TRAC, 750 F.2d at 80. Plaintiff does not allege that impropriety
is the cause of "agency lassitude." (See Compl., Doc. 1.) As a result, both parties agree that
this factor is neutral and should not impact the Court's analysis. (See Motion to Dismiss,
Doc. 9, Pg. ID 66; Response, Doc. 10, Pg. ID 82.)
*

*

*

The TRAC factors ultimately favor Defendants. In turn, Plaintiff has failed to state
a claim of unreasonable delay under the APA. See Telukunta, 2021 U.S. Dist. LEXIS 111676,
at *8 (citation omitted) ("Delay alone, without other circumstances of unreasonableness,
is not the unreasonable delay required ... under the APA."). Because Plaintiff has not
alleged an unreasonable delay, her APA claim must fail.
b. Mandamus Relief Claim
The Court next considers Plaintiff's claim for mandamus relief, wherein Plaintiff
requests that this Court compel Defendants to adjudicate Plaintiff's fiance' s visa
application because they have failed to do so within a reasonable time. (See Compl., Doc.
1,

,r,r 28-34.) Defendants argue that this claim should be dismissed because Plaintiff has

failed to demonstrate a right to relief. (Motion to Dismiss, Doc. 9, Pg. ID 57-58.) Plaintiff
fails to address or counter this argument in her response. (See Response, Doc. 10.) "Where
a party fails to support its claim in a brief opposing a motion to dismiss, district courts
are free to treat those claims as abandoned and dismiss them." Pierre Invs., Inc. v. Fifth

15

Third Bancorp, No. 1:22-CV-155, 2022 WL 6764494, at*5 (S.D. Ohio Oct. 11, 2022), affd, No.
23-3269, 2022 U.S. Dist. LEXIS 186170 (6th Cir. Dec. 4, 2023); see also Doe v. Bredesen, 507
F.3d 998, 1007-08 (6th Cir. 2007).
But, even if Plaintiff had not abandoned this claim, it would nevertheless fail.
Where, as here, "the relief sought by [Plaintiff] through a writ of mandamus is essentially
the same as that sought under the AP A, the court may consider the claim under the APA"
standard. Singh v. Mayorkas, No. 3:23-CV-527, 2024 U.S. Dist. LEXIS 19547, at *6 (M.D.
Tenn. Feb. 5, 2024) (citation omitted). Because Plaintiff's APA claim fails, her "mandamus
action alleging unreasonable delay necessarily fails as well." Ebrahimi, 2023 U.S. Dist.
LEXIS 198199, at *19 (citations omitted). Thus, Plaintiff's claim for mandamus relief must
be dismissed.
c. Fifth Amendment Due Process Claim

Finally, the Court considers Plaintiff's Fifth Amendment due process claim against
Defendants. (See Compl., Doc. 1,

,r,r

35-39.) Defendants move to dismiss this claim,

arguing that Plaintiff has not identified any violation of a protected liberty. (Motion to
Dismiss, Doc. 9, Pg. ID 66-67.) Plaintiff does not address or respond to this argument (see
Response, Doc. 10), so this claim is abandoned. Pierre Invs., Inc., 2022 U.S. Dist. LEXIS
186170, at *5. Regardless, this claim likely fails on the merits. The Sixth Circuit has found
that "American residents-whether citizens or legal residents-do not have a
constitutional right to require the National Government to admit noncitizen family
members into the county." Baaghil v. Miller, 1 F. 4th 427, 433 (6th Cir. 2021). "The same
holds true for spouses." Id. Thus, Plaintiff's Fifth Amendment due process claim must
16

also be dismissed.
CONCLUSION

Based on the foregoing reasons, Defendants' Motion to Dismiss (Doc. 9) is
GRANTED. Plaintiff's Complaint (Doc. 1) is DISMISSED under Rule 12(b)(6) for failure

to state a claim. This case is TERMINATED from the Court's docket.
IT IS SO ORDERED.

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF~
By: ~

'\IJ,4,!

JUDGE MATTHEW W. McFARLAND

17