1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARJAN MIRBOD, et al., Case No.: 3:24-cv-01430-CAB-MMP

12 Plaintiffs,

ORDER GRANTING MOTION TO

13 v. DISMISS

14 ANTONY J. BLINKEN, et al., [Doc. No. 6] 15 Defendants. 16 17 On August 12, 2024, Plaintiffs Marjan Mirbod (“Plaintiff Marjan”), et al., filed this 18 lawsuit and petition for a writ of mandamus against Defendants Antony Blinken, in his 19 official capacity as U.S. Secretary of State, and Robert Jachim, in his official capacity as 20 Acting Director of Screening, Analysis, and Coordination. Plaintiffs seek to compel 21 adjudication of the immigrant visa applications of beneficiary Plaintiffs Maryam Lavasani 22 (“Plaintiff Maryam”) and Morvarid Lavasani (“Plaintiff Morvarid”), and derivative 23 beneficiary Plaintiffs Kamran Shakeri (“Plaintiff Kamran”) and Pooyan Rashidian 24 (“Plaintiff Pooyan”). Defendants filed a motion to dismiss pursuant to Rules 12(b)(1) and 25 12(b)(6) of the Federal Rules of Civil Procedure. Defendants’ motion to dismiss is 26 GRANTED. 27 /// 28 /// 1 I. BACKGROUND 2 Plaintiff Marjan is a U.S. citizen who filed a Form I-130 for her sisters—Plaintiffs 3 Maryam, an Iranian national and resident, and Morvarid, an Iranian national and Canadian 4 resident. Plaintiffs Kamran and Pooyan are the husbands of Plaintiffs Maryam and 5 Morvarid, respectively. U.S. Citizenship and Immigration Services approved Plaintiffs’ 6 two Form I-130 petitions on July 7, 2009. Plaintiff Maryam was found documentarily 7 qualified on June 17, 2021, and interviewed by a consular officer in the U.S. Embassy in 8 Yerevan, Armenia on August 21, 2023. Plaintiff Morvarid was found documentarily 9 qualified on January 5, 2021, and interviewed by a consular officer in the U.S. Embassy in 10 Yerevan, Armenia on November 6, 2023. 11 Plaintiffs were both refused for administrative processing and asked to supply 12 additional information by submitting a DS-5535 form, which they allege they did. 13 Plaintiffs Maryam’s and Morvarid’s applications have remained refused while undergoing 14 administrative processing for seventeen and fifteen months, respectively. Plaintiffs allege 15 “they have received no new or useful information from Defendants regarding their 16 applications since their interviews.” [Compl. ¶ 102.] Plaintiffs seek declaratory and 17 injunctive relief, and a writ of mandamus to compel Defendants to adjudicate Plaintiffs’ 18 applications. Defendants move to dismiss for lack of subject matter jurisdiction and/or 19 failure to state a claim. 20 II. LEGAL STANDARDS 21 A. Rule 12(b)(1) 22 Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss based 23 on the court’s lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The federal 24 court is one of limited jurisdiction. See Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 25 774 (9th Cir. 1986). Plaintiffs have the burden of establishing that the court has subject 26 matter jurisdiction. Ass’n. of Am. Med. Colls. v. United States, 217 F.3d 770, 778–79 (9th 27 Cir. 2000). As such, the court cannot reach the merits of any dispute until it confirms its 28 subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 1 (1998). A defense of lack of “subject-matter jurisdiction, because it involves a court’s 2 power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 3 625, 630 (2002). The Court can adjudicate subject matter jurisdiction sua sponte. See 4 Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004). A facial attack to the 5 Court’s jurisdiction pursuant to Rule 12(b)(1) tracks “a motion to dismiss under Rule 6 12(b)(6).” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Thus, in 7 “determin[ing] whether the [plaintiff’s] allegations are sufficient as a legal matter to invoke 8 the [C]ourt’s jurisdiction,” the Court “[a]ccept[s] the plaintiff’s allegations as true and 9 draw[s] all reasonable inferences in the plaintiff’s favor . . . .” Id. 10 B. Rule 12(b)(6) 11 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 12 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” The 13 Court evaluates whether a complaint states a recognizable legal theory and sufficient facts 14 in light of Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain 15 statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does 16 not require ‘detailed factual allegations,’ . . . it [does] demand[] more than an unadorned, 17 the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 18 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 19 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 20 accepted as true, to ‘state a claim of relief that is plausible on its face.’” Id. (quoting 21 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 22 when the collective facts pled “allow[] the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Id. There must be “more than a sheer 24 possibility that a defendant has acted unlawfully.” Id. Facts “merely consistent with” a 25 defendant’s liability fall short of a plausible entitlement to relief. Id. (quoting Twombly, 26 550 U.S. at 557). The Court need not accept as true “legal conclusions” contained in the 27 complaint, id., or other “allegations that are merely conclusory, unwarranted deductions of 28 fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 1 (9th Cir. 2010). The Court accepts as true all allegations in the complaint and construes 2 the allegations in the light most favorable to the plaintiff. See Knievel v. ESPN, 393 F.3d 3 1068, 1072 (9th Cir. 2005). 4 III. DISCUSSION 5 The Court notes that this complaint is the second instance of alleged unreasonable 6 delay in immigration processing that the Court has addressed in the last three months. See 7 Rezai v. Blinken, No. 3:24-CV-01016-CAB-JLB, 2024 WL 4830988 (S.D. Cal. Nov. 18, 8 2024). Moreover, it is the fifth instance of such an allegation that this District has addressed 9 in the last year. See id.; Mosayebian v. Blinken, No. 24-CV-130 JLS (MMP), 2024 WL 10 3558378 (S.D. Cal. July 25, 2024); Infracost Inc. v. Blinken, 732 F. Supp. 3d 1240 (S.D. 11 Cal. Apr. 30, 2024); Davila v. Cohan, No. 23-CV-1532 JLS (BLM), 2024 WL 711618 12 (S.D. Cal. Feb. 21, 2024). Plaintiffs’ counsel in the present case was involved in four of 13 these five previous cases and their briefing in each has been quite similar. As such, 14 Plaintiffs’ counsel will find the following analysis familiar. 15 Plaintiffs bring four claims. They allege that Defendants have unlawfully withheld 16 and unreasonably delayed adjudication of Plaintiffs’ application in violation of Sections 17 555(b), 706(1), and 706(2) of the Administrative Procedures Act (“APA”), and the 18 Mandamus Act. Additionally, Plaintiffs claim that Defendants’ failure to issue all 19 Congressionally allotted family preference visas violates APA § 706(2). 20 A. The Court Analyzes Only the APA Claims 21 A claim seeking relief under the Mandamus Act is essentially the same “as one for 22 relief under § 706 of the APA.” Independence Min. Co., v. Babbitt, 105 F.3d 502, 507 (9th 23 Cir. 1997). “When a complaint seeks identical relief under the APA and the Mandamus 24 Act, courts routinely elect to analyze [the] APA claim only.” Akbar v. Blinken, No. 25 23CV1054-LL-BLM, 2023 WL 8722119, at *3 (S.D. Cal. Dec. 18, 2023); see also Vaz v. 26 Neal, 33 F.4th 1131, 1135 (9th Cir. 2022). Here, Plaintiffs seek to compel adjudication of 27 their immigrant visa applications under both the APA and Mandamus Act. The Court thus 28 elects to analyze Plaintiffs’ APA claims only. 1 B. Plaintiffs’ Unreasonable Delay Claim Fails 2 Plaintiffs bring their claim for unreasonable delay under Section 555(b). Section 3 555(b) of the APA “does not contain an independent cause of action, but instead creates a 4 duty that some courts have held can be enforced through 5 U.S.C. § 706(1).” Mosayebian, 5 2024 WL 3558378, at *4. The Court, therefore, addresses Plaintiffs’ challenge for 6 unreasonable delay under 706(1). See id. at *4–5. 7 “[A] court may compel agency action under the APA when the agency (1) has ‘a 8 clear, certain, and mandatory duty,’ and (2) has unreasonably delayed in performing such 9 duty . . . .” Vaz, 33 F.4th at 1136 (citation omitted). Here, even if the Court assumes that 10 Defendants have a clear and mandatory duty to adjudicate, Plaintiffs fail to allege that 11 Defendants have unreasonably delayed post-refusal adjudication of Plaintiffs’ visa 12 application. See Lee v. Blinken, No. 23-CV-1783 (DLF), 2024 WL 639635, at *4 (D.D.C. 13 Feb. 15, 2024) (“The Court will assume without deciding that the plaintiffs allege the 14 defendants are subject to a discrete, required duty because, in any event, they have not 15 suffered an unreasonable delay . . . .” (footnote omitted)). “To determine whether an 16 agency’s delay is unreasonable under the APA, [the Ninth Circuit] use[s] the TRAC 17 factors—the six-factor balancing test announced in Telecommunications Research & 18 Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (‘TRAC’)”. Vaz, 33 F.4th at 19 1137. The factors are as follows: 20 “(1) the time agencies take to make decisions must be governed by a rule of 21 reason; 22 (2) where Congress has provided a timetable or other indication of the speed with 23 which it expects the agency to proceed in the enabling statute, that statutory 24 scheme may supply content for this rule of reason; 25 (3) delays that might be reasonable in the sphere of economic regulation are less 26 tolerable when human health and welfare are at stake; 27 (4) the court should consider the effect of expediting delayed action on agency 28 activities of a higher or competing priority; 1 (5) the court should also take into account the nature and extent of the interests 2 prejudiced by delay; and 3 (6) the court need not find any impropriety lurking behind agency lassitude in 4 order to hold that agency action is unreasonably delayed.” 5 TRAC, 750 F.2d at 80 (internal quotation marks and citations omitted). 6 1. TRAC Factors One and Two 7 “The first two factors are often considered together” and the first is “often considered 8 ‘the most important.’” Lee, 2024 WL 639635, at *5 (quoting In re Core Commc’ns, Inc., 9 531 F.3d 849, 855 (D.C. Cir. 2008)). Plaintiffs argue that the first two factors weigh in 10 their favor because § 237 of Public Law 106-113 and the Department’s Foreign Affairs 11 Manual state that it shall be the policy of the State Department to process non-immediate 12 relative/other family-based immigration visa applications within sixty days. However, 13 these provisions are accorded little weight as they are only aspirational targets for the 14 Department. See Mosayebian, 2024 WL 3558378, at *10. Indeed, Congress rather has 15 given “significant discretion . . . to the federal agencies tasked with processing immigration 16 applicants and vetting them to protect the national security.” Pourshakouri v. Pompeo, No. 17 CV 20-00402 (RJL), 2021 WL 3552199, at *9 n.11 (D.D.C. Aug. 11, 2021). Moreover, in 18 this specific context of a request for adjudication following a refusal, Courts have held that 19 “[n]o statutory or regulatory timeline exists within which the State Department or a 20 consular office must re-adjudicate visa applications.” Barazandeh v. U.S. Dep’t of State, 21 No. CV 23-1581 (BAH), 2024 WL 341166, at *8 (D.D.C. Jan. 30, 2024). 22 With no “congressionally supplied yardstick,” the Court looks to caselaw as a 23 guideline for whether a seventeen-month (Plaintiff Maryam) or fifteen-month (Plaintiff 24 Morvarid) delay is unreasonable. See Sarlak v. Pompeo, No. CV 20-35 (BAH), 2020 WL 25 3082018, at *6 (D.D.C. June 10, 2020). “Even though courts have drawn no bright lines 26 to determine reasonableness, district courts have generally found that immigration delays 27 of two to three years are reasonable.” Barazandeh, 2024 WL 341166, at *8. Indeed, “many 28 courts evaluating similar delays have declined to find a two-year period to be unreasonable 1 as a matter of law.” Ghadami v. United States Dep’t of Homeland Sec., No. CV 19-00397 2 (ABJ), 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020). 3 Here, Plaintiffs’ post-refusal adjudications have been pending in administrative 4 processing for seventeen and fourteen months. The Court finds that factors one and two 5 weigh for Defendants due to the significant deference provided to the State Department in 6 administering immigration visa applications and because such delays are not unreasonable 7 according to extensive case law. The Court is especially hesitant to find otherwise “[g]iven 8 the complex and sensitive nature of visa determinations” which “fall outside of [the 9 Court’s] typical expertise.” Mosayebian, 2024 WL 3558378, at *8. 10 2. TRAC Factors Three and Five 11 Courts frequently examine TRAC factors three and five, which consider potential 12 harm and prejudice to plaintiffs, together as well. See Ordian v. Blinken, No. CV 23-2993 13 (TSC), 2024 WL 3251226, at *6–7 (D.D.C. July 1, 2024). Plaintiffs allege that the delay 14 in adjudication is causing significant stress and anxiety in Plaintiffs and their families. 15 They note that the delay has disrupted their lives and plans. The Court recognizes that 16 prolonged volatility and uncertainty in one’s family situation can take an immense toll. 17 Accordingly, the Court finds factors three and five to weigh in favor of Plaintiffs. 18 3. TRAC Factor Four 19 The fourth factor is considered among the most important. Milligan v. Pompeo, 502 20 F. Supp. 3d 302, 319 (D.D.C. 2020). Plaintiffs argue that “there is no higher or competing 21 priority. Immigrant visas, and not nonimmigrant visas, should be Defendants’ priority.” 22 [Compl. ¶ 144.] They further contend that “Defendants have not established that there is 23 a queue, let alone Plaintiffs’ place therein.” [Doc. No. 8 at 17.] At the same time, however, 24 Plaintiffs allege there is a backlog of tens of thousands of security screenings. [Compl., 25 Ex. B ¶¶ 23–25.] The Court is persuaded that “[o]ne need not unearth the details of the 26 visa-adjudication process . . . to surmise that the relief Plaintiffs seek would reorder 27 [Department] priorities.” Rashidi v. United States Dep’t of State, No. CV 23-1569 (JEB), 28 2023 WL 6460030, at *6 (D.D.C. Oct. 4, 2023). Further, “[p]rocessing capacity is 1 presently a zero-sum game, [and] granting plaintiffs’ request to expedite would necessarily 2 mean additional delays for other applicants—many of whom undoubtedly face hardships 3 of their own.” Ordian, 2024 WL 3251226, at *7 (quoting Murway v. Blinken, No. 21-cv- 4 1618, 2022 WL 493082, at *4 (D.D.C. Feb. 16, 2022) (quotation omitted)). As such, the 5 Court finds that factor four weighs for Defendants. 6 4. TRAC Factor Six 7 Plaintiffs allege that Defendants have acted with impropriety by disregarding “the 8 indefinite suffering of working families and the time-sensitive nature of the Plaintiffs’ 9 case.” [Compl. ¶ 147.] Factor six, however, asks “whether the reason behind the delay is 10 improper (e.g., intentional or motivated by animus).” Mosayebian, 2024 WL 3558378, at 11 *11 (emphasis added). Plaintiffs do not allege such impropriety. Factor six, nonetheless, 12 is neutral as “the absence of impropriety does not weigh against Plaintiffs.” Id. 13 In sum, then, with the most important factors—one and four—favoring Defendants, 14 and given the extensive case law that has reached the same outcome for similar and longer 15 delays, the Court finds the TRAC balancing test to weigh in favor of Defendants. The Court 16 declines to order Defendants to rearrange their processing priorities as Congress has 17 provided them with significant discretion. The Court accordingly finds that Plaintiffs have 18 failed to state a claim for unreasonable delay under the APA and GRANTS Defendants’ 19 motion to dismiss. 20 C. Plaintiffs’ Unlawful Withholding Claim Fails 21 Plaintiffs bring their claim for unlawful withholding under Sections 706(1) and 22 706(2) of the APA. Given that it is Section 706(1) that permits a court to “compel agency 23 action unlawfully withheld,” and Defendants construe Plaintiffs’ claim under Section 24 706(1) with no objection by Plaintiffs within their response, the Court only addresses 25 Plaintiffs’ Section 706(1) claim for unlawful withholding. See Mosayebian, 2024 WL 26 3558378, at *4–5 (deeming Plaintiff abandoned Section 706(2) claim because it 27 parroted Section 706(1) claim’s “‘unlawful withholding’ and ‘unreasonable delay’ 28 1 allegations” and Defendant characterized it as such with no objection by Plaintiff); see also 2 Rezai, 2024 WL 4830988 at *2. 3 Moreover, where a plaintiff fails to sufficiently distinguish their APA claim for 4 unlawful withholding from their APA claim for unreasonable delay, the Court’s 5 unreasonable delay analysis “addresses the entirety of [P]laintiffs’ § 706(1) claim[] to 6 compel agency action.” Rezai, 2024 WL 4830988, at *5 (alteration in original). The Court 7 finds that Plaintiffs’ claim for unlawful withholding, like their claim for unreasonable 8 delay, fails and GRANTS Defendants’ motion to dismiss. 9 D. Plaintiffs Lack Standing to Challenge Below Cap Issuance of Family 10 Preference Visas in 2018–2023 11 Plaintiffs allege that “Defendants’ decision(s) to not issue the Congressionally 12 allotted number of Family-Sponsored Preference categories from FY-2018-2023 nullified 13 and ignored Congress’s considered judgment on the matter of immigration.” [Compl. ¶ 14 156.] Plaintiffs argue that this is a violation of the law per Section 706(2). Defendants 15 counter that Plaintiffs lack standing to bring this claim and the Court should dismiss for 16 lack of subject matter jurisdiction. The Court agrees. 17 Federal courts may only hear cases and controversies, and standing is a core 18 component of that requirement. Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 897 (9th 19 Cir. 2011). To establish standing, “a plaintiff must show an injury that is concrete, 20 particularized and actual or imminent (the injury-in-fact requirement); traceable to the 21 defendant’s complained-of activity (the traceability requirement); and likely to be 22 redressed by a decision favorable to plaintiff (the redressability requirement).” Ghalambor 23 v. Blinken, No. CV 23-9377-MWF (BFMX), 2024 WL 2889868, at *7 (C.D. Cal. Apr. 25, 24 2024) (internal quotation remarks omitted) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 25 560–61 (1992)). Even assuming Plaintiffs have suffered an injury in the delay of post- 26 refusal re-adjudication of their visa applications, they fail to demonstrate how their injury 27 is traceable to Defendants’ action of not issuing all allotted family preference visas from 28 2018–2023. It is unclear to the Court how a delay in post-refusal adjudication of Plaintiffs’ 1 || visa applications, in 2025, can be traced to Defendants’ decision to not issue all family 2 || preference visas between 2018 and 2023, particularly when Plaintiffs’ applications were 3 || initially considered and rejected in 2023. Though the bar for traceability is low, see □□□□□ 4 || Conservation League v. Bonneville Power Admin., 83 F 4 1182, 1188 (9th Cir. 2023), the 5 || Court finds the connection between the alleged injury and the complained-of action as too 6 || attenuated to maintain Article III standing. 7 Moreover, regarding redressability, the Court notes that Plaintiffs do not state what 8 relief they request for this claim, neither within the section for the claim nor in the prayer 9 || for relief. See Steel Co., 523 U.S. at 103 (“there must be redressability—a likelihood that 10 || the requested relief will redress the alleged injury.” (emphasis added)). Even if the Court 11 ||}assumes that Plaintiffs seek to have the Court order Defendants to issue the total allotted 12 ||number of family preference visas from 2018 to 2023, Plaintiffs fail to demonstrate how 13 || their alleged injury of a delay in post-refusal adjudication in 2025 would be redressed. See 14 || Ghalambor, 2024 WL 2889868, at *7 (finding plaintiff whose family preference visa 15 |/interview was delayed lacked standing to challenge below cap issuance of such visas in 16 2018-2023). Accordingly, the Court GRANTS Defendants’ motion to dismiss this claim 17 || under Rule 12(b)(1). 18 IV. CONCLUSION 19 For the above-stated reasons, Plaintiffs’ claims against Defendants are DISMISSED 20 || without leave to amend as no amendments to the complaint would change the Court’s 21 ||conclusion. See Mosayebian, 2024 WL 3558378, at *12. This dismissal, however, as to 22 || Plaintiffs’ unreasonable delay claim, is WITHOUT PREJUDICE to refiling should later 23 || circumstances demonstrate an unreasonable delay. Id. 24 Itis SO ORDERED. 25 || Dated: February 6, 2025 € 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28