Waris v. Bitter
- Clarke
- 1:23-cv-09487
- U.S. District Court · Southern District of New York
- 17
In Waris v. Bitter, Judge Clarke denied jurisdictional dismissal but granted dismissal for failure to state an unreasonable-delay claim and dismissed the case without prejudice.
Irum Waris and Umer Farooq were affected because the court did not order the Government to decide Farooq’s visa application, although it left the case dismissed without prejudice if the application remained pending for an unreasonable period. The named State Department defendants prevailed on the dismissal of the claims.
What happened
In Waris v. Bitter, Irum Waris asked the court to require State Department officials to decide her husband Umer Farooq’s immigrant-visa application, which remained in administrative processing. The Government argued that the case was moot and that courts could not review the visa process.
The court rejected those arguments because administrative processing was not a final visa decision, so the case was not moot and the rule generally limiting review of visa decisions did not apply. But the court ruled that Waris had not plausibly shown that the agency’s delay was unreasonable. It also dismissed her separate request for a government order under the Mandamus Act because the Administrative Procedure Act provided another possible remedy.
Judge Jessica G. L. Clarke denied the motion to dismiss for lack of jurisdiction, granted the motion to dismiss for failure to state a claim, and dismissed the case without prejudice. The court noted that Waris could potentially bring the case again if the application remained pending for an unreasonable period.
The detailed version
- Waris v. Bitter · No. 1:23-cv-09487
- Clarke
- June 28, 2024
Background
Irum Waris, a United States citizen, filed an immigrant-visa application for her husband, Umer Farooq. United States Citizenship and Immigration Services approved the underlying family petition in 2020, and the case was sent to the National Visa Center for consular processing. After the case was deemed documentarily qualified, Farooq interviewed for the visa on March 6, 2023. He later submitted a corrected birth certificate and his original passport to the Islamabad embassy.
The State Department’s visa-status tool stated that a consular officer had refused the application and that, because the case was undergoing administrative processing, it would remain refused during that processing and could receive another decision later. Waris alleged that the delay prevented her and Farooq from building a life together in the United States. She also alleged that she had repeatedly traveled to visit him, suffered emotional and health-related harm, and experienced anxiety, insomnia, and depression.
Waris sued under the Mandamus Act and the Administrative Procedure Act (APA), seeking an order requiring the defendants to adjudicate Farooq’s application and issue permission for him to enter the United States. The defendants moved to dismiss the case, arguing that the visa had already been refused, that consular nonreviewability barred judicial review, that the court lacked jurisdiction over the mandamus claim, and that the APA claim was inadequately pleaded.
Consular nonreviewability and mootness
The court held that the doctrine of consular nonreviewability did not bar Waris’s action. That doctrine generally prevents courts from reviewing a consular officer’s final decision to grant, deny, or suspend a visa. The court distinguished a challenge to a final visa decision from a challenge to an alleged failure to act within a reasonable time.
The court also held that Farooq’s application had not received a final adjudication. Although the application was described as refused under Section 221(g) of the Immigration and Nationality Act, the notice said that the case would remain refused during administrative processing and that another decision could follow. The court therefore treated the application as still pending. For the same reason, the court held that the case was not moot.
Mandamus claim
The court dismissed the Mandamus Act claim without prejudice. A mandamus order requires a clear right to relief, a plainly defined government duty, and the absence of another adequate remedy. The court ruled that the availability of an APA claim prevented Waris from satisfying the third requirement, even though the court ultimately found that her APA claim was not adequately pleaded.
APA unreasonable-delay claim
The APA requires an agency to act within a reasonable time and allows a court to compel agency action that has been unlawfully withheld or unreasonably delayed. The court evaluated the alleged delay using six factors commonly known as the TRAC factors.
The first two factors favored the Government because Congress had not established a deadline for deciding visa applications and courts generally give agencies substantial discretion in immigration processing. The court also found that Waris had not alleged government misconduct or other irregularities beyond the passage of time. Depending on the starting point used, the relevant delay was between about one and four years, while courts have often found immigration delays of three to five years not unreasonable and delays exceeding five to seven years unreasonable.
The third and fifth factors favored Waris because she alleged significant effects on her health, welfare, and relationship with Farooq. The fourth factor, concerning whether expedited action would interfere with higher-priority agency work or other applicants’ cases, was neutral because the court lacked an evidentiary record showing that relief would unfairly delay other applications. The sixth factor, concerning agency impropriety, was inapplicable because Waris made no allegations about the Government’s motives.
Balancing the factors, the court concluded that the delay was substantial and harmful but was not yet unreasonable under the governing case law. The court granted the Government’s motion to dismiss the APA cause of action.
Disposition
The court denied the motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). It granted the motion to dismiss under Rule 12(b)(6), including dismissal of the mandamus claim without prejudice and dismissal of the APA claim. The case was dismissed without prejudice should Farooq’s application remain pending to an unreasonable degree, and the Clerk was directed to close the case.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.