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11 United States District Court 12 Central District of California

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14 SYED ARIF HUSSAIN MOSAVI, Case № 2:24-cv-01769-ODW (AJRx)

15 Plaintiff,

ORDER GRANTING

16 v. 17 R ENA BITTER et al., MOTION TO DISMISS [10]

18 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 2 II. 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.) Defendants now move to dismiss the Complaint pursuant to 21 Rule 12(b)(6) for failure to state a claim. (Mot. 1–2.) 22 III. 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

1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the 27 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 28 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). 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). Leave to amend may be denied when “the court 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). Thus, leave to amend “is properly 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. 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 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.” See Cheng v. Baran, 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. 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 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. The INA states that an individual 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.” 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. 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 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). 7 Mosavi alleges that his protected interest arises from a “statutorily created 8 entitlement to adjudication of his wife’s visa application.” (See Compl. ¶ 38.) 9 However, for the reasons discussed above, the alleged statutory right has not yet been 10 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.” (Opp’n 25.) Neither suffices here. First, 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). 22 Accordingly, the Court finds that, lacking a constitutionally protected interest, 23 Mosavi fails to raise a plausible due process claim. 24 25 26

3 On a Rule 12(b)(6) motion to dismiss, the Court is limited to the pleadings when evaluating 27 whether a plaintiff states a claim. See Lee, 250 F.3d at 688–89. The Court considers Mosavi’s 28 opposition arguments here only for the purpose of determining whether leave to amend may be warranted. 1 Vv. CONCLUSION 2 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 September 3, 2024 vo 11 tijd Yigal ht

OTIS D.WRIGHT, II

3 UNITED STATES DISTRICT JUDGE

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