Khalili-Araghi v. Bitter

Background

Farkhondeh Khalili-Araghi filed a visa petition in 2013 for her daughter, Fatemeh Firouzeh Iran Nejad, who lives in Iran. The petition was approved in 2014. In 2019, the case was reopened for visa processing, and on March 26, 2021, it was deemed “documentarily qualified,” meaning that the daughter was qualified to apply formally for an immigrant visa. An interview with a consular officer at the U.S. Embassy in Abu Dhabi had not been scheduled.

Khalili-Araghi sought an order requiring State Department officials, including the embassy’s Chargé d’Affaires, to act. She asserted claims under the Administrative Procedure Act (APA), which allows courts to compel agency action unlawfully withheld or unreasonably delayed, and the Mandamus Act, which allows courts to require a federal officer or agency to perform a duty owed to a plaintiff.

The defendants moved for summary judgment. Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment under the law. The court also rejected Khalili-Araghi’s objections to the defendants’ evidence and denied her request for additional discovery, finding that the existing declarations and other materials were sufficient to resolve the mainly legal issues.

Whether the defendants had a mandatory duty

The court explained that an APA claim based on agency inaction requires a plaintiff to identify a specific action that the agency was required to take. The plaintiff must show both a clear, certain, and mandatory duty and an unreasonable delay in performing that duty.

Khalili-Araghi relied on 8 U.S.C. § 1202(b) and 22 C.F.R. § 42.81(a). Section 1202(b) provides that immigrant-visa applications must be reviewed and adjudicated by a consular officer. Section 42.81(a) describes what an officer must do when a visa application has been properly completed and executed before the officer, including issuing or refusing the visa.

The court held that neither provision creates a clear, certain, and mandatory duty to schedule the daughter’s interview. The court reasoned that the daughter had filed a visa petition but had not yet appeared before a consular officer for an interview. Under the relevant regulation, the application stage begins when the applicant personally appears before a consular officer. The court also noted that interviews depend partly on the capacity of consular offices and embassies.

The court therefore concluded that the State Department does not have a nondiscretionary duty to act on an immigrant visa petition in the way the plaintiff requested, as opposed to an immigrant visa application after the interview stage. The court distinguished cases involving unusual circumstances in which the State Department had declined to schedule interviews for a period based on an interpretation of a presidential proclamation, finding that those circumstances were not present here.

Whether the delay was unreasonable

The court separately considered whether the delay would have been unreasonable even if the defendants had a duty to schedule the interview. Courts evaluate unreasonable-delay claims under the six-factor test commonly called the TRAC factors. Those factors consider whether the agency is following a reasonable timetable, whether Congress provided a timetable, the effect on human health and welfare, competing agency priorities, the interests harmed by the delay, and whether agency impropriety contributed to the delay.

The court measured the delay from March 2021, when the daughter was deemed documentarily qualified. It recognized that the plaintiff’s health made the delay particularly harmful. But it found that the other factors strongly favored the defendants. The court cited the effects of the COVID-19 pandemic, the embassy’s continuing priority for healthcare workers and Afghan nationals, the need to account for Farsi-speaking consular officers, the number of applicants waiting ahead of the daughter, and decisions finding that longer delays in immigrant-visa processing were reasonable. It also reasoned that allowing one applicant to move ahead of others could be unfair.

The court concluded that it was too early to call the delay unreasonable, even assuming the defendants had a mandatory duty to schedule the interview.

Disposition

Judge Laurel Beeler granted the defendants’ motion for summary judgment on both grounds: the defendants did not have the required nondiscretionary duty to schedule the interview, and the delay was not unreasonable. The court stated that a separate judgment would issue and that the ruling resolved the motion at ECF No. 13.