Tikhonova v. U.S. Department of State

Background

Olga Tikhonova, proceeding without a lawyer, alleged that she is a U.S. citizen. Her mother, Liubov Tikhonova, is identified in the opinion as the visa beneficiary and as a citizen and resident of Russia. Tikhonova filed a petition for an immigrant visa for her mother in July 2021. The complaint alleged that the petition was approved, sent to the National Visa Center, and followed by the submission of the required visa application forms in November 2021.

The National Visa Center later stated that it had received the required fees, forms, and documents and would work with the U.S. Embassy in Warsaw to schedule an interview. The State Department had suspended immigrant-visa services at the U.S. Embassy in Moscow and designated Warsaw to process immigrant visas for Russian residents. Poland later announced that it would no longer issue visas to Russian citizens or allow them into the country. Tikhonova alleged that an interview was nevertheless scheduled in Warsaw for November 23, 2022, and that she repeatedly asked the National Visa Center to change the location.

Tikhonova sued the U.S. Department of State and Antony Blinken in his official capacity as Secretary of State. She brought claims under the Mandamus Act, which can allow a court to require a federal officer or agency to perform a legally required duty, and the Administrative Procedure Act, which can allow a court to require agency action unlawfully withheld or unreasonably delayed. She sought an order requiring the defendants to schedule the interview in the country where her mother resides and approve the visa application.

Legal standard and analysis

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction, and Rule 12(b)(6), for failure to state a legally sufficient claim. The court explained that relief under either the Mandamus Act or the relevant Administrative Procedure Act provision requires a legally required agency duty. The required duty must be based on a specific and clear command to take a particular agency action.

The court examined 8 U.S.C. § 1202(a), which provides that an immigrant-visa applicant must apply in the form and manner and at the place prescribed by regulation. The court concluded that the statute does not specifically require an interview or application to occur at a particular location. It also reviewed regulations stating that the State Department may direct where applications are accepted and that do not limit where the agency may schedule an interview.

The court relied on decisions finding that visa applicants have no substantive right to have their applications processed at a particular venue and that the State Department has broad discretion over immigration processing. Because Tikhonova identified no statute or regulation requiring the interview to occur in Moscow, the court held that she had not shown a nondiscretionary duty to schedule it there. The court therefore granted the motion to dismiss on that basis.

Disposition

The court granted the motion to dismiss. It dismissed without leave to amend the claims based on the belief that the interview should be held in Russia or another specific location chosen by Tikhonova. The court stated that it could not conclude at that stage that amendment would be futile as to claims seeking other relief, so Tikhonova was permitted to amend those claims by September 8, 2023. Any amended complaint was to address the then-current status of the visa application, including whether an interview in Kazakhstan or elsewhere had been offered, scheduled, or held, and why a live claim remained. The court warned that failure to amend by the deadline or address those issues could result in dismissal of the action in its entirety without further leave to amend. The court also terminated Dkt. No. 20 as moot. Judge Haywood S. Gilliam, Jr. set a telephonic case-management conference for October 17, 2023.