Hassan v. Dillard

Background

Samsam Abas Hassan, a United States citizen who resides in Saint Cloud, Minnesota, filed suit against Marc C. Dillard, the Deputy Chief of Mission at the U.S. Embassy in Kenya, and Antony Blinken, the Secretary of the U.S. Department of State. Hassan alleged that the defendants unreasonably delayed adjudicating her fiancé Abdikani Bashier Hussein’s properly filed I-129F visa application.

Hassan filed the application with United States Citizenship and Immigration Services in July 2021 on Hussein’s behalf. The agency initially approved the petition in June 2022, but the application remained pending. Hussein had a consular interview at the U.S. Embassy in Kenya in March 2023. He was not issued a visa and was told that the application was “refused” for further “administrative processing.” Hassan and Hussein later made inquiries but received no meaningful response about what steps, if any, the defendants were taking.

Hassan alleged that the delay caused personal, financial, and emotional hardship, including separation from her fiancé, postponement of the couple’s wedding, travel-related debt, abandonment of her master’s-degree plans, and delay in opening an ethnic grocery store. She also alleged that she was pregnant and had experienced significant health complications.

Claims and motion

Hassan asserted three causes of action. Her first two were claims under the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1), and the Mandamus Act, 28 U.S.C. § 1361, along with the All Writs Act, 28 U.S.C. § 1651. These claims sought to require the defendants to complete adjudication of the visa application and were treated by the court as “unreasonable-delay claims.” Her third cause of action alleged violations of her substantive and procedural due-process rights under the Fifth Amendment.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint plausibly states a claim for relief. They argued that Hassan’s due-process claim failed under Department of State v. Muñoz, that they owed her no nondiscretionary duty to take further action, that the doctrine of consular nonreviewability barred the delay claims, and that the alleged delay was not plausibly unreasonable.

Due-process claim

The court granted dismissal of the due-process claim. Relying on Muñoz, the court explained that a citizen does not have a fundamental liberty interest in a noncitizen spouse being admitted to the United States. The court concluded that this reasoning also defeated Hassan’s substantive and procedural due-process theories because she could not identify a liberty interest protected by the Fifth Amendment in her fiancé’s visa application.

Unreasonable-delay claims

The court rejected the defendants’ argument that the consular officer’s “refusal” ended the government’s legal obligation to adjudicate the application. The court was not persuaded that a refusal followed by administrative processing was a final agency decision. It noted that the State Department’s online status information stated that an applicant whose case was refused for administrative processing would receive another adjudication after that processing was complete. The court therefore concluded that the matter had not been finally resolved.

The court also rejected dismissal based on consular nonreviewability. That doctrine generally prevents courts from reviewing a consular officer’s final visa decision. The court held that the doctrine did not apply because Hassan challenged the delay, not the ultimate visa decision, and the application remained in administrative processing awaiting final adjudication.

The defendants also argued that the delay was not unreasonable under the factors commonly known as the TRAC factors. Those factors consider, among other things, whether the agency followed a reasonable timetable, the interests harmed by the delay, competing agency priorities, and whether the agency acted improperly. The court declined to resolve that issue at the motion-to-dismiss stage. It explained that the record did not provide enough information to evaluate the reasons for the delay, the agency’s timing practices, competing priorities, or the interests affected. The court stated that deciding the merits of the unreasonable-delay claim would be premature without a more developed record.

Disposition

The court ordered that the defendants’ motion to dismiss was granted in part and denied in part. Hassan’s due-process claim in her Third Cause of Action was dismissed. The motion was otherwise denied, including as to the unreasonable-delay claims.