Asresash B.T. v. Mayorkas

Background

Asresash B.T. is a United States citizen who resides in Minnesota. The opinion identifies Derartu H. S. as Asresash B.T.’s child and as a resident of Ethiopia. Asresash B.T. filed a Form I-130 petition to sponsor Derartu H. S. for an immigrant visa. United States Citizenship and Immigration Services approved the petition in 2013 and classified Derartu H. S. as a relative in the F2A category.

Consular officials in Ethiopia denied Derartu H. S.’s visa application in 2014 because of a documentation issue concerning her age. The officials automatically reclassified the underlying petition as F2B and began a reconsideration process. In 2018, Asresash B.T. became a naturalized United States citizen. The defendants represented that this prompted another administrative recharacterization. Derartu H. S. appeared before consular officials in 2019, but the parties disagreed about whether that appearance concerned a new application or reconsideration of the original application.

The plaintiffs alleged that a 2019 reapplication remained undecided and that they had suffered an unreasonable delay. They alleged that Derartu H. S. never received the required written notice of a decision after the 2019 appearance. They brought claims under the Administrative Procedure Act, which can provide a remedy for unreasonable agency delay, and the Mandamus Act, which allows courts to order certain officials to perform a clear, nondiscretionary duty.

Court’s Analysis

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the amended complaint did not state a legally sufficient claim. In deciding that motion, the court accepted the complaint’s factual allegations as true but required the allegations to make relief plausible rather than merely possible.

Administrative Procedure Act claim

The court explained that the consular nonreviewability doctrine generally prevents courts from reviewing a consular officer’s final decision to issue or withhold a visa. The opinion identified exceptions when excluding a noncitizen burdens a citizen’s constitutional rights or when a statute expressly authorizes review. The doctrine does not generally bar review of an application that has not received a final decision, including a claim that processing has been unreasonably delayed.

As to the 2014 application, the court held that the plaintiffs failed to state a claim because the parties agreed that consular officials adjudicated and denied that application in 2014. The plaintiffs did not assert that either exception to consular nonreviewability applied, and the court found that neither did.

As to the alleged 2019 reapplication, the court rejected the plaintiffs’ theory as implausible. The court relied on regulations providing for automatic conversion of certain immigrant-visa petitions. It concluded that the conversion of Derartu H. S.’s petition almost certainly caused the original F2A application to be automatically reclassified as an F2B application, rather than creating a new application. The plaintiffs therefore failed to state a claim that officials had unreasonably delayed deciding a separate 2019 F2B application.

Mandamus claim

The court explained that mandamus is an extraordinary remedy requiring a clear and indisputable right to relief, a nondiscretionary duty owed by the defendant, and no other adequate remedy. In immigration-delay cases, the court said, mandamus and Administrative Procedure Act claims require essentially the same showing. Because the Administrative Procedure Act claim failed, the mandamus claim also failed.

Disposition

The court granted the defendants’ motion to dismiss and dismissed the plaintiffs’ amended complaint without prejudice. The order directed that judgment be entered accordingly.