Naghibolashrafi v. Pompeo

Background

Nariman Naghibolashrafi and Bahareh Hosseini, who are married, sought mandamus, declaratory, and injunctive relief against the United States Department of State, the Federal Bureau of Investigation, and responsible officials. They alleged that the government had improperly delayed processing Hosseini’s visa application and her eligibility for a waiver under Presidential Proclamation 9645.

Hosseini is an Iranian national living in Tehran, Iran. The United States Citizenship and Immigration Services approved the petition, and the National Visa Center scheduled a visa interview for September 2018. At the interview, an officer told Hosseini that her visa was refused under the Proclamation. The United States Embassy then requested additional information to evaluate whether she qualified for a waiver and estimated that administrative processing would take about six to ten months. The waiver remained pending when the plaintiffs filed their complaint on October 15, 2019.

The complaint asserted that the delay was unreasonable under the Administrative Procedure Act, specifically 5 U.S.C. § 706(1), and sought a writ of mandamus. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which addresses subject-matter jurisdiction, and Rule 12(b)(6), which addresses whether a complaint states a legally sufficient claim.

Jurisdiction and Mootness

The defendants argued that the doctrine of consular non-reviewability barred the court from reviewing the matter. The court rejected that argument. Although federal courts generally cannot review consular officials’ decisions, an exception applies when a plaintiff challenges the official’s authority or failure to act rather than a discretionary decision. The plaintiffs challenged the Embassy’s failure to decide Hosseini’s waiver eligibility, not the ultimate grant or denial of the waiver. Because there was no consular decision for the court to review, consular non-reviewability did not apply.

The defendants also argued that the case was moot because Hosseini’s visa had already been denied. The court rejected that argument because the plaintiffs were challenging the delay in processing her waiver eligibility, not the initial visa denial. An order requiring a final decision on waiver eligibility could still affect the parties’ rights, so the case remained an active case or controversy.

Administrative Procedure Act Claim

The court rejected the defendants’ arguments that the plaintiffs’ claim was not reviewable under the Administrative Procedure Act. Although presidential actions generally are not reviewed under the Act, the court concluded that the Proclamation’s statutory foundation and the officials’ implementation of it permitted review of the plaintiffs’ challenge. The court also concluded that the statute did not make waiver review entirely discretionary: consular officers had discretion over whether to grant or deny a waiver, but they were required to consider waiver eligibility.

The court then applied the six factors commonly used to determine whether an agency has unreasonably delayed action, known as the TRAC factors. The first factor asks whether the agency’s timing follows a reasonable rule. The court treated this factor as the most important and concluded that the delay was not unreasonable. It noted that courts had generally found delays of less than two years not unreasonable and that the Proclamation involved national-security concerns and information-sharing issues.

The second factor, concerning any timetable set by Congress, was neutral because no such timetable applied. The third and fifth factors favored the plaintiffs because the delay separated the married couple and caused continuing harm. The fourth factor strongly favored the defendants because approximately 14,000 other visa applicants were in a similar position, and ordering immediate action on Hosseini’s waiver could delay other applications. The sixth factor, concerning possible agency misconduct, was neutral.

Based on the TRAC analysis, the court concluded that the plaintiffs had failed to state a plausible claim under the Administrative Procedure Act. The court therefore granted the defendants’ motion to dismiss. The dismissal was without leave to amend but without prejudice to refiling at a later date.

Mandamus and Disposition

Because the plaintiffs had not stated a valid Administrative Procedure Act claim and had alleged no other claim for relief, the court concluded that they also failed to state a claim for mandamus under 28 U.S.C. § 1361.

Judge Nathanael M. Cousins granted the defendants’ motion to dismiss. The dismissal was without leave to amend and without prejudice to refiling at a later date.