Zaman v. U.S. Department of Homeland Security ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MD ZAHIDUZ ZAMAN, )
a U.S. Citizen, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-3592 (ABJ)
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
On November 29, 2019, Md Zahiduz Zaman, an American citizen, filed a complaint
seeking to compel defendants – the United States Department of Homeland Security (“DHS”); the
United States Citizenship and Immigration Services (“USCIS”); the United States Department of
State (“DOS”); the United States “Consulate” in Dhaka, Bangladesh; Secretary of DHS, Alejandro
Mayorkas; Director of USCIS, Ur Mendoza Jaddou; Secretary of State Antony J. Blinken; and the
United States Ambassador to Bangladesh, Earl Miller 1 – to adjudicate the immigration visas he
filed on behalf of his mother, Zahanara Habib, and his father, Md Habibur Rahman. 2 Compl.
[Dkt. # 1] ¶¶ 1–12; Compl., Req. for Relief ¶¶ 1–10. The complaint includes two causes of action:
Count One alleges that the decisions on the visa applications have been unreasonably delayed in
1 Defendants Alejandro Mayorkas, Ur Mendoza Jaddou, and Antony J. Blinken are
substituted automatically as defendants in this action pursuant to Federal Rule of Civil Procedure
25(d).
2 Plaintiff initially included claims relating to a visa application for his spouse, Mst Fatema
Tuj-Juhura Tonny, Compl. ¶¶ 16–23, whose visa has since been issued. See Decl. of Evangeline
Howard (“Howard Decl.”) [Dkt. # 14-1] ¶ 5.
contravention of law, and Count Two alleges that the failure to act violates plaintiff’s due process
rights under the Fifth Amendment to the U.S. Constitution. Compl. ¶¶ 41–44, 52–59.
Plaintiff asks the Court to issue a writ of mandamus ordering either the issuance of the
immigrant visas or ordering defendants to complete all administrative proceedings within sixty
days. Compl., Req. for Relief ¶¶ 5, 7. He also asks that the Court order defendants to explain the
cause and nature of the delay and inform plaintiff of any action he may take to “accelerate
processing of the visa application[s].” Compl., Req. for Relief ¶ 8. 3 Finally, plaintiff asks the
Court to assume jurisdiction of this matter and to adjudicate the immigration visa petitions itself
under its declaratory judgment authority. Compl. ¶ 6. The prayer for relief also seeks attorneys’
fees and other costs. Compl. ¶ 9.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants have moved
to dismiss plaintiff’s claims for lack of subject matter jurisdiction and for failure to state a claim
upon which relief can be granted. Defs.’ Mot. to Dismiss [Dkt. # 14] (“Mot.”) at 1. For the reasons
set forth below and after review of the entire record, 4 the Court will grant defendants’ motion to
dismiss.
3 Plaintiff’s Request for Relief also calls for a declaration concerning the legality of a DHS
policy known as the “Controlled Application Review and Resolution Program” (“CARRP”).
Compl., Req. for Relief ¶¶ 2–4. While there are allegations in Count One that the policy
contributed to the allegedly unlawful delay in processing the visa, Compl. ¶¶ 47–51, there is no
specific claim in the complaint addressing the policy and whether or why it should have been
subject to notice and comment rulemaking. See generally Compl. Count One is predicated on the
provision in the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., that authorizes a
court to “compel agency action unlawfully withheld or unreasonably delayed[,]”
5 U.S.C. § 706(1), see Compl. ¶ 43, and it does not specify any other provision of the statute that
may have been violated.
4 Pl.’s Opp. to Defs.’ Mot. [Dkt. # 18] (“Opp.”); Defs.’ Reply to Pl.’s Opp. [Dkt. # 19]
(“Reply”).
2
BACKGROUND
On November 28, 2016, plaintiff filed I-130 IR-5 visa petitions with USCIS for his parents,
Ms. Habib and Mr. Rahman. 5 Compl. ¶¶ 24, 27, 32, 35; see also Howard Decl. ¶¶ 6–7. He alleged
that their applications were forwarded to a consular officer in Bangladesh after USCIS concluded
processing the applications on July 18, 2017, Compl. ¶¶ 29, 37, and that his parents’ visa interviews
were conducted on or about April 19, 2018. Compl. ¶¶ 31, 39. But the visa applications have
remained pending since then. Compl. ¶¶ 31, 39; see also Mot. at 2.
According to the defendants, as of March 2020, DOS suspended visa services in
Bangladesh due to the onset of the COVID-19 pandemic. See Mot. at 2. Routine visa services
remain suspended in Bangladesh, and this has contributed to a backlog of visa applications there.
Id.LEGAL STANDARD
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005).
5 Plaintiff’s complaint appears to contain errors about the facts of his parents’ visa
applications. Many of these statements were lifted, almost entirely verbatim, from statements
made regarding plaintiff’s spousal visa submission. Compare Compl. ¶¶ 17–21 (filing visa
petition for spouse), with Compl. ¶¶ 25–29 (naming plaintiff’s mother but filing visa petition for
spouse as applicant), and Compl. ¶¶ 33–37 (same with plaintiff’s father).
3
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences
are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal
conclusions. Food and Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015);
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Federal
courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation
omitted); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (citation omitted)
(“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”).
“[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no
action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). When considering a motion to
dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the
court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241
(D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider
such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it
has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
4
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
Court in Iqbal outlined two central principles: “First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[s]econd,
only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft,
566 U.S. at 678–79, citing Twombly, 550 U.S. at 555–56. A claim is facially plausible if the facts
“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S. at 556.
ANALYSIS
Defendants moved to dismiss plaintiff’s complaint pursuant to both Rule 12(b)(1) and
12(b)(6). Mot. at 4. They argue that the Court does not have jurisdiction to hear plaintiff’s claims
against DHS, USCIS, and officials from DHS, USCIS, and DOS because these defendants cannot
grant the relief plaintiff seeks: an adjudication of the applications. Mot. at 4. Defendants also
moved to dismiss the complaint under Rule 12(b)(6) on the grounds that plaintiff has failed to state
a claim under the APA, the Mandamus Act, or the Fifth Amendment of the Constitution.
Mot. at 5–13.
The Court finds that it has jurisdiction over the case, but that plaintiff has failed to state a
claim for relief that is plausible on its face.
I. Subject Matter Jurisdiction
Plaintiff has filed a claim under the Administrative Procedure Act (“APA”),
5 U.S.C. § 701, and a petition for a writ of mandamus pursuant to the Mandamus Act,
28 U.S.C. § 1361. Compl. ¶ 13. The APA entitles “person[s] suffering a legal wrong because of
agency action, or adversely affected or aggrieved by agency action . . . to judicial review thereof,”
and instructs that “[a]n action in a court of the United States seeking relief other than money
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damages and stating a claim that an agency or an officer or employee thereof acted or failed to act
in an official capacity or under color of legal authority shall not be dismissed.” 5 U.S.C. § 702.
Under ordinary circumstances, if the APA provides a cause of action, courts have subject matter
jurisdiction under 28 U.S.C. § 1331, the general federal question statue. See Am. Rd. & Transp.
Builders Ass’n. v. EPA, 865 F.Supp.2d 72, 80–81 (D.D.C. 2012), aff’d, No. 12–5244,
2013 WL 599474 (D.C. Cir. Jan. 28, 2013) (per curiam). The APA requires that agencies, “within
a reasonable time . . . shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). If
they fail to do so, the APA authorizes courts to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). At the same time, however, the APA exempts from
judicial review “agency action [that] is committed to agency discretion by law.”
5 U.S.C. § 701(a)(2).
Defendants maintain, though, that aside from the “consulate in the Foreign Jurisdiction,”
no government officials “can grant the relief [p]laintiff seeks in this matter – namely, an
adjudication of the Application,” because only consular officials have authority to adjudicate
immigration applications. Mot. at 4–5. They point to the Immigration and Nationality Act of 1952
(“INA”), 8 U.S.C. § 1101, et seq., which governs the visa adjudication process and grants “consular
officers exclusive authority to review applications for visas.” Mot. at 4; Saavedra Bruno v.
Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999), citing 8 U.S.C. §§ 1104(a), 1201(a). Because
consular officers have exclusive authority to review visa applications, this Court cannot adjudicate
the immigration visa petitions under its declaratory judgment authority as plaintiff has requested.
See Compl., Req. for Relief ¶ 6.
But the crux of plaintiff’s complaint is there has been an unreasonable delay in issuing any
final decisions on the visa applications. See Compl. ¶¶ 41–55. Plaintiff is not asking this Court to
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review a consular decision made in a foreign country. Because the suit challenges agency inaction,
as opposed to a decision taken within the consul’s discretion, plaintiff’s claims should not be
dismissed for lack of jurisdiction. See Moghaddam v. Pompeo, 424 F. Supp. 3d 104, 114
(D.D.C. 2020), quoting Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997); see also Norton v. S.
Utah Wilderness All., 542 U.S. 55, 63, 65.
Defendants also argue that DHS and its component, USCIS, have completed their
processing relating to plaintiff’s applications and thus “any claims against officials from the
Department of Homeland Security and USCIS are plainly moot or without merit.” Mot. at 4.
However, DHS and USCIS cannot definitively claim they have “completed their processing
relating to the Applications.” Mot. at 4. Defendants assert that plaintiff’s parents’ applications
“remain[] refused under INA 221(g).” Howard Decl. ¶¶ 6, 7. When an IR-5 visa is pending under
INA 221(g), the consular officer may, among other actions, submit the petition to USCIS for
reconsideration. See Immigrant Visa Petitions Returned by the State Department Consular
Offices, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/forms/all-forms/immigrant-
visa-petitions-returned-by-the-state-department-consular-offices (last updated July 15, 2011).6
6 Ms. Howard writes that Ms. Habib and Mr. Rahman’s applications were “refused” under
section 221(g) of the INA. Howard Decl. ¶¶ 6–7. This section of the INA provides:
No visa or other documentation shall be issued to an alien if (1) it appears
to the consular officer, from statements in the application, or in the papers
submitted therewith, that such alien is ineligible to receive a visa or such
other documentation under section 1182 of this title, or any other provision
of law, (2) the application fails to comply with the provisions of this chapter,
or the regulations issued thereunder, or (3) the consular officer knows or
has reason to believe that such alien is ineligible to receive a visa or such
other documentation under section 1182 of this title, or any other provision
of law.
7
Because plaintiff’s IR-5 visa applications are pending, no final decisions have been rendered – and
DHS and USCIS may yet play a role in the process.
For these reasons, the Court finds it has subject matter jurisdiction over this case.
II. Unreasonable Delay
Plaintiff argues that defendants have violated the APA by “intentionally delaying a
response to the DOS in regard to [p]laintiff’s family members’ visa application[s],” Compl. ¶ 47,
and that their “application[s] ha[ve] been in administrative processing beyond a reasonable time
period for completing administrative processing of [their] visa application[s].” Compl. ¶ 52; see
also Opp. at 1 (emphasis in original) (“Plaintiff Md Zahiduz Zaman has waited 3 years for the
adjudication of his immigrant visa petitions . . . this delay is simply unreasonable under prevailing
federal law.”). Plaintiff contends that “the combined delay and failure to act on [p]laintiff’s family
members’ immigrant visa application[s] is attributable to the failure of [d]efendants to adhere to
their legal duty to avoid unreasonable delays under the [Immigration and Nationality Act].”
Compl. ¶ 53.
Defendants move to dismiss under Rule 12(b)(6) on the grounds that the complaint does
not state a claim for unreasonable delay that would support relief under the APA or mandamus
relief, Mot. at 1, and they emphasize that any delay was occasioned by the COVID-19 pandemic.
See Mot. at 11 (“Unquestionably, [p]laintiff’s applications have been delayed further due to
measures necessary to prevent the spread of COVID-19 and protect the safety of U.S. officials . .
. .”); see also Reply at 3.
8 U.S.C. § 1201(g). Applications may remain in administrative processing even after DOS issues
section 221(g) refusals, rendering these refusals interim decisions. See, e.g., Vulupala v. Barr,
438 F. Supp. 3d 93, 98 (D.D.C. 2020).
8
Under the Mandamus Act, 28 U.S.C. § 1361, a court can issue a writ of mandamus only if
plaintiff demonstrates: “(1) a clear and indisputable right to relief, (2) that the government agency
or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists.” Am.
Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). A writ of mandamus is only issued
“where the duty to be performed is ministerial and the obligation to act peremptory, and clearly
defined. The law must not only authorize the demanded action, but require it.” 13th Reg’l Corp.
v. U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980) (internal citations and quotations
omitted). When a plaintiff seeks mandamus relief, the court “starts from the premise that issuance
of the writ is an extraordinary remedy, reserved only for the most transparent violations of a clear
duty to act.” In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000); see also In re Core
Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (“Core Commc’ns”) (internal quotations
omitted) (“The central question in evaluating a claim of unreasonable delay is whether the agency’s
delay is so egregious as to warrant mandamus.”).
The APA requires that agencies, “within a reasonable time . . . shall proceed to conclude a
matter presented to it.” 5 U.S.C. § 555(b). If they fail to do so, the APA authorizes courts to
“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
“The standard by which a court reviews . . . agency inaction is the same under both § 706(1)
of the APA and the Mandamus Act.” Bhagerian v. Pompeo, 442 F. Supp. 3d 87, 96 (D.D.C. 2020),
quoting Skalka v. Kelly, 246 F. Supp. 3d 147, 152 (D.D.C. 2017) (internal quotation marks
omitted). The court must look to whether “the agency has unreasonably delayed the contemplated
action,” Core Commc’ns, 531 F.3d at 855 (internal quotation marks omitted), but “[t]here is no
per se rule as to how long is too long to wait.” In re Am. Rivers & Idaho Rivers United,
372 F.3d 413, 419 (D.C. Cir. 2004) (quotation marks and citation omitted).
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In this Circuit, a claim for unreasonable delay is analyzed by considering the six factors set
out in Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984) (“TRAC”). When
evaluating “whether the agency’s delay is so egregious as to warrant mandamus,” the Court must
consider the following:
(1) the time agencies take to make decisions must be governed by a rule of reason;
(2) where Congress has provided a timetable or other indication of the speed with which it
expects the agency to proceed in the enabling statute, that statutory scheme may supply
content for this rule of reason;
(3) delays that might be reasonably in the sphere of economic regulation are less tolerable
when health and welfare are at stake;
(4) the effect of expediting delayed action on agency activities of higher or competing
priority;
(5) the nature and extent of the interest prejudiced by delay; and
(6) that it need not find any impropriety behind agency lassitude in order to hold that
agency action is unreasonably delayed.
TRAC, 750 F.2d at 80 (internal citations and quotations omitted). These factors “are not ‘ironclad,’
but rather are intended to provide ‘useful guidance in assessing claims of agency delay.’” Core
Commc’ns, 531 F.3d at 855, quoting TRAC, 750 F.2d at 80. “Each case must be analyzed
according to its own unique circumstances” and “will present its own slightly different set of
factors to consider.” Air Line Pilots Ass’n Int’l v. Civ. Aeronautics Bd., 750 F.2d 81, 86
(D.C. Cir. 1984).
A. TRAC Factors 1 and 2
The first two factors weigh in defendants’ favor. Typically considered together, see
Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020), these factors ask whether the delay
comports with a “rule of reason,” which can be determined by a congressionally provided
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“timetable or other indication of the speed with which it expects the agency to proceed.” TRAC,
750 F.2d at 80.
Defendants point out that “there is no statutory or regulatory timeframe within which the
[DOS] or a consular officer must reconsider the refused visa application,” and that “Congress gave
the [DOS] ‘wide discretion in the areas of immigration processing.’” Reply at 2, citing Skalka v.
Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017). Plaintiff takes the position, though, that the
absence of a statutory provision weighs in his favor: “there is no Congressional guidance that
supplies a rule of reason that would justify Defendants’ delay in this case.” Opp. at 8. When there
is no “congressionally supplied yardstick” for a reasonable timetable, courts in this district
“typically turn to case law as a guide.” Milligan, 502 F. Supp. 3d at 318, quoting Sarlak v. Pompeo,
No. 20-35, 2020 WL 3082018, at *6 (D.D.C. June 10, 2020). And as the court in Sarlak noted,
“[d]istrict courts have generally found that immigration delays in excess of five, six, seven years
are unreasonable, while those between three to five years are often not unreasonable.”
2020 WL 3082018, at *6 (internal citation omitted).
Approximately forty-two months have passed since plaintiff’s parents’ visa applications
were filed. See Howard Decl. ¶¶ 6–7. The Court does not mean to minimize the burdens imposed
by that delay; it is entirely understandable that the family would find three years to be too long.
But similar and even greater delays have been found insufficient to warrant emergency relief in
this district. See Skalka, 246 F. Supp. 3d at 153–54 (noting that a two-year delay in processing an
immigration visa “does not typically require judicial intervention” and citing cases finding delays
up to ten years as reasonable); see also Didban v. Pompeo, 435 F. Supp. 3d 168, 176 (D.D.C. 2020)
(two-year delay); Zandieh v. Pompeo, No. 20-919, 2020 WL 4346915, at *6 (D.D.C.
11
July 29, 2020) (twenty-nine month delay); Ghadami v. United States Dep’t of Homeland Sec.,
No. 19-00397, 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020) (twenty-five month delay).
Moreover, defendants assert that routine visa services were and remain suspended in
Bangladesh due to the international COVID-19 pandemic. Mot. at 2–3; Reply at 3. The significant
public health considerations impacting consular staff and the suspension of visa activities in
Bangladesh are circumstances well beyond the agency’s control, and they weigh in favor of
defendants on the first two TRAC factors.
For these reasons, the Court finds that the first and second TRAC factors weigh in favor of
defendants.
B. TRAC Factors 3 and 5
The third and fifth TRAC factors weigh in plaintiff’s favor. 7 The third factor considers
whether “health and welfare are at stake,” and the fifth considers “the nature and extent of the
interests prejudiced by delay.” TRAC, 750 F.2d at 80. Because the third and fifth factors are
similar, courts tend to analyze them together. See, e.g., In re Barr Lab’ys, Inc., 930 F.2d 72, 75–
76 (D.C. Cir. 1991) (“Bar Lab’ys”). Plaintiff alleges that the delay in adjudicating his parents’
visas has “irrevocably harmed [p]laintiff by causing a loss of consortium between [p]laintiff and
[p]laintiff’s family members, among other ways.” Compl. ¶ 59. It is plainly difficult for plaintiff
to be separated from his parents, and his interest in receiving a decision is significant. But given
the bond between these family members, the Court has reason to believe that the strain imposed
on the relationship has not caused “irrevocable” harm, and it is notable for purposes of the amount
7 Plaintiff and defendants both considered the third and fifth TRAC factors together in their
pleadings. Mot. at 10–11; Opp. at 9–10.
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of weight to be accorded this factor that fortunately, there are no allegations of exigent health
concerns.
In sum, these factors weigh in plaintiff’s favor, but they do not outweigh the other factors.
C. TRAC Factor 4
The fourth factor, “the effect of expediting delayed action on agency activities of a higher
or competing priority,” TRAC, 750 F.2d at 80, is of critical importance in this case and supports
defendants’ motion. This factor carries “the greatest weight in many cases,” Milligan,
F. Supp. 3d at 319, and courts generally defer to the agency’s “unique – and authoritative –
position to view its projects as a whole, estimate the prospects for each, and allocate its resources
in the optimal way.” Barr Lab’ys, 930 F.2d at 76. The D.C. Circuit has declined mandamus relief
“even though all the other factors considered in TRAC favored it, where ‘a judicial order putting
[the petitioner] at the head of the queue [would] simply move[] all others back one space and
produce[] no net gain.’” Mashpee Wampanoag Tribal Council, Inc. v. Norton,
336 F.3d 1094, 1100 (D.C. Cir. 2003); see also Burwell, 812 F.3d at 192 (courts should “reject[]
mandamus claims that would have [] the effect of allowing the plaintiffs to jump the line,
functionally solving their delay problem at the expense of other similarly situated applicants.”).
The relief sought by plaintiff would place him ahead of others awaiting similar decisions.
Defendants explain that “[t]he COVID-related shutdowns . . . have resulted in an accrual of a
significant backlog of visa applications worldwide, such as the visa applications at issue in this
case,” and that “[t]he Embassy in Dhaka is currently working through that backlog.” Howard
Decl. ¶ 13. Since granting the relief plaintiff seeks would move his parents’ applications ahead of
other individuals in similarly difficult circumstances, the Court finds that this factor weighs in
favor of defendants.
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D. TRAC Factor 6
The sixth factor reminds the Court that it “need not ‘find any impropriety [] behind agency
lassitude in order to hold that agency action is ‘unreasonably delayed.’” TRAC, 750 F.2d at 80.
Plaintiff has not asserted bad faith on the part of defendants, Opp. at 10, and the Court would
therefore be inclined to consider this factor to be neutral. However, the Court notes that other
courts in the district have concluded that the absence of such allegations weighs in favor of the
agency because “the good faith of the agency in addressing the delay weighs against relief.” Tate
v. Pompeo, No. 20-3249, 2021 WL 148394, at *12 (D.D.C. Jan. 16, 2021), quoting Liberty Fund,
Inc. v. Chao, 394 F. Supp. 2d 105, 120 (D.D.C. 2005).
It is not necessary to resolve that issue here since the sixth factor would not weigh heavily
in the analysis in either event, and the Court finds that the assessment of all of the other factors
strongly favors the defendants.
III. Due Process Claim
Plaintiff’s second claim for relief alleges that defendants have violated his due process
rights under the Fifth Amendment through “[t]he combined delay and failure to act by
[d]efendants.” Compl. ¶ 58. Defendants move to dismiss this claim under Rule 12(b)(6).
The Court recognizes that “[i]n the enforcement of the [immigration] policies, the
Executive Branch of the Government must respect the procedural safeguards of due process.”
Galvan v. Press, 347 U.S. 522, 531 (1954). To state a due process claim, plaintiff must plausibly
allege, first, that “there exists a liberty or property interest of which plaintiff has been deprived,”
and second, that the procedures the government provided were constitutionally inadequate.
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); see also Jafarzadeh v. Nielsen,
321 F. Supp. 3d 19, 47 (D.D.C. 2018).
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Plaintiff has not provided the Court with any legal support for the notion that his interest
in his association with his parents and their immigration to the United States is a liberty or property
interest cognizable under the due process clause. While there is authority for the proposition that
parents have a fundamental constitutional liberty interest in the “care, custody, and control of their
children,” Troxel v. Granville, 530 U.S. 57, 65 (2000); see Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 31 (1981) (addressing due process requirements in parental termination
proceedings); Smith v. Org. of Foster Fams. for Equal. & Reform, 431 U.S. 816, 854–56 (1977)
(examining constitutional adequacy of notice, pre-removal conference, and post-removal hearing
in administrative action to remove child from custody of foster parents); Stanley v. Illinois,
405 U.S. 645, 649 (1972) (due process entitles unwed father to a hearing on his fitness as a parent
before removing minor children from his custody), here, plaintiff is an adult, and he does not allege
that the government has taken any action aimed directly at disrupting the familial relationship.
Moreover, the parent-child relationship is usually recognized as a liberty interest in the
context of a parent’s right to the custody and care of a minor child. See Ginsberg v. New York,
390 U.S. 629, 639 (1968) (recognizing parents’ right “to direct the rearing of their children [as]
basic in the structure of our society”); Stanley, 405 U.S. at 651 (internal quotation marks omitted)
(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the state can neither
supply nor hinder.”). The D.C. Circuit does not recognize a relationship protected under the due
process clause where the child is an independent adult. Butera v. District of Columbia,
235 F.3d 637, 656 (D.C. Cir. 2001) (dismissing a mother’s section 1983 claim that her son’s death
during his employment with the D.C. Metropolitan Police Department violated her due process
right to the companionship of her adult child because “a parent does not have a constitutionally-
15
protected liberty interest in the companionship of a child who is past minority and independent”);
see also McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003) (dismissing section 1983 claim
against police officers implicated in the fatal shooting of plaintiff’s son on the ground that “the
fundamental guarantees of the Due Process Clause do not extend to a parent’s interest in the
companionship of his independent adult child”).
Thus, the Court is bound by circuit precedent to find that plaintiffs’ claim does not
implicate a liberty interest protected by the Fifth Amendment. See Al-Aulaqi v. Obama,
727 F. Supp. 2d 1, 26 (D.D.C. 2010) (plaintiff had no constitutionally protected interest in
maintaining a relationship with his adult child); see also Singh v. Tillerson, 271 F. Supp.
3d 64, 71 –72 (D.D.C. 2017) (finding that the limited exception to consular nonreviewability for
visa decisions that violate a constitutionally protected liberty interest did not apply because
plaintiffs did not have a liberty interest in the parent-child relationship), citing Movimiento
Democracia, Inc. v. Chertoff, 417 F. Supp. 2d 1350, 1353 (S.D. Fla. 2006) (“[T]here is no statutory
or constitutional right to familial association with a person trying to immigrate to the United
States.”).
Therefore, the Court will dismiss plaintiff’s constitutional claim.
CONCLUSION
For these reasons, defendants’ motion to dismiss, [Dkt. # 14], will be GRANTED.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 16, 2021
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