Sindt v. United States Citizenship and Immigration Services ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZECHARIAH SINDT
Plaintiff,
v. Civil Action No. 22-774 (CKK)
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
(March 1, 2023)
In this visa case, Plaintiff Zechariah Sindt (“Plaintiff” or “Sindt”) seeks declaratory and
mandamus relief ordering officials of the United States Department of State (“State Department”)
and United States Citizen and Immigration Services (“USCIS”) to more expeditiously process a
Form I-130 immigrant visa for his spouse, Sophea Chhem (“Beneficiary”), pursuant to the
Administrative Procedure Act’s (“APA”) bar on “unreasonabl[e] delay.” 5 U.S.C. § 706(1). In
addition to his APA claim, Plaintiff alleges a procedural due process claim, predicated on his right
to fairness in administrative adjudication.
Because USCIS has reaffirmed and conveyed Plaintiff’s visa application for processing to
the State Department’s National Visa Center (“NVC”), all claims as against the USCIS Defendants
are moot. Because USCIS had yet to convey Plaintiff’s application to NVC at the time Plaintiff
commenced this action, he lacks standing to challenge any delay at NVC. Even were he to file a
supplemental pleading to cure this jurisdictional defect, he nevertheless cannot state a claim upon
which the Court may grant relief. Accordingly, and upon review of the pleadings, 1 the relevant
1
The Court’s consideration has focused on the following documents:
• Plaintiff’s Complaint (“Compl.”), ECF No. 1;
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legal authority, and the record as a whole, the Court shall GRANT Defendants’ [7] Motion to
Dismiss or for Summary Judgment.
I. BACKGROUND
The Court assumes the reader’s familiarity with the process and statutory background for
visa applications broadly. The Court takes the following facts, to the extent they are plausible, as
true for the purposes of resolving the pending Rule 12(b)(6) motion to dismiss. See Ralls Corp. v.
Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). Plaintiff Zechariah Sindt is a
citizen of the United States. Compl. at ¶ 1. Plaintiff’s spouse, Sophea Chhem, is a citizen and
resident of the Kingdom of Cambodia. Id. at ¶ 2. On April 15, 2020, Plaintiff filed a Form I-130
visa petition on behalf of his spouse, paying all applicable visa and filing fees. Id. at ¶¶ 16–17.
USCIS approved the Form I-130 petition on December 8, 2020, completing its portion of the
processing of the visa petition. Id. at ¶ 18. The visa petition was then transferred to the State
Department’s National Visa Center (“NVC”), which completed its processing of the petition and
sent it to the U.S. Embassy, Phnom Penh. Id. at ¶¶ 19–20. A consular officer from the U.S.
Embassy in Phnom Penh interviewed Chhem in June of 2021, rejecting the petition for lack of a
bona fide marriage and returning it to USCIS in August of 2021, where the petition remained at
the time Plaintiff commenced this action in March of 2022. Id. at ¶¶ 20–22. In April of 2022,
USCIS issued a Notice of Intent to Revoke its previous approval of Plaintiff’s petition, to which
• Defendants’ Motion to Dismiss (“Mot.”), ECF No. 7;
• Plaintiff’s Opposition to Defendants’ Motion to Dismiss (“Opp.”), ECF No. 8;
and
• Defendants’ Reply in Support of Defendants’ Motion to Dismiss (“Reply”), ECF
No. 10.
In an exercise of its discretion, the Court has concluded that oral argument would not be
of assistance in resolving this matter.
2
Plaintiff responded in May of 2022 with additional information. Mot. Ex. 1–2. In June of 2022,
USCIS reaffirmed its approval of the petition, once more sending it to NVC. Reply at 5.
II. LEGAL STANDARDS
A. Motion to Dismiss for Lack of Jurisdiction
On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a
preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 91–92 (D.D.C. 2020);
see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether there
is jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts evidenced
in the record, or the complaint supplemented by undisputed facts plus the court's resolution of
disputed facts.’” Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)
(citations omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Courts must accept as true all factual allegations in the complaint and construe the complaint
liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged.
See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005); Koutny v. Martin, 530
F. Supp. 2d 84, 87 (D.D.C. 2007).
However, “the factual allegations in the complaint will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001). A court need not
accept as true “‘a legal conclusion couched as a factual allegation’” or an inference “‘unsupported
by the facts set out in the complaint.’” Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C.
Cir. 2006) (internal quotation marks omitted) (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)).
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B. Motion to Dismiss for Failure to State a Claim
Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint
is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must
accept the factual allegations in the complaint as true and draw all reasonable inferences in favor
of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006).
When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint” or
“documents upon which the plaintiff’s complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward
v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation
marks omitted) (quoting Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002);
Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). The court may also consider
documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc.
v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
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III. DISCUSSION
A. Mootness
Defendants first move to dismiss the complaint as against the USCIS Defendants on
mootness grounds. See Mot. at 3–5; Reply at 2–3. Defendants argue that because Plaintiff’s visa
application is currently with NVC for review, there is no relief the Court could grant against
USCIS. See Mot. at 3. That is, USCIS has completed their review of Plaintiff’s petition,
reaffirming their initial approval of Plaintiff’s petition, and is no longer involved in any manner
with the processing of the visa. Article III requires that Plaintiff demonstrate, among other things,
that his injury actually be redressable by a ruling in his favor. Lujan v. Defenders of Wildlife, 504
U.S. 555, 568 (1992). “Where an agency has accorded all relief it can in a visa case, claims against
that agency are moot.” Haider v. United States Dep’t of Homeland Sec., Civ. A. No. 20-3808, 2021
WL 5630794, at *2 (D.D.C. Dec. 1, 2021) (CKK); accord Jafarzadeh v. Duke, 270 F. Supp. 3d
296, 303 (D.D.C. 2017) (JDB). Here, because USCIS has approved Plaintiff’s petition and sent it
to the National Visa Center for review, the agency cannot grant any further relief. Accordingly,
the Court shall dismiss Plaintiff’s complaint as against USCIS and Ur Jaddou, in her official
capacity as Director of United States Citizenship and Immigration Services.
B. Ripeness
Defendants next move to dismiss the complaint as against the State Department on
constitutional ripeness grounds. See Mot. at 3–5; Reply at 2, 5–6. Defendants rightly note that, at
the time Plaintiff commenced this action, his application was pending with USCIS, not NVC.
Constitutional ripeness is indeed assessed at the outset of the litigation. See Jafarzadeh, 270 F.
Supp. 3d at 303 (“The twin doctrines of mootness and ripeness can be described as ‘standing set
in a time frame: The requisite personal interest that must exist at the commencement of litigation
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(standing) must continue throughout its existence (mootness).’” (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n.22 (1997))). 2
When Plaintiff filed this suit, then, his claim of injury as against the State Department
needed to have been actual and imminent, not conjectural or speculative. See City of Los Angeles
v. Lyons, 461 U.S. 95, 102–03 (1983). But at the time Plaintiff commenced this action, the State
Department had already rejected Plaintiff’s petition and returned it USCIS, where it awaited
further review. Compl. at ¶¶ 20–22. In order for the State Department to have had any further
involvement in the review of Plaintiff’s petition, USCIS needed to reapprove the petition and send
it back to the State Department for further processing. 3 Therefore, any future action by the State
Department regarding this petition depended first upon USCIS exercising its discretion in
reapproving the petition—without such a reapproval, and until such a reapproval, the State
Department’s involvement with the petition was hypothetical. Therefore, it appears that Plaintiff
did not have standing to challenge delay at NVC at the time of his complaint.
The usual method of addressing this issue, however, is for a plaintiff to move for leave to
file a supplemental pleading “pursuant to Federal Rule of Civil Procedure 15(d) that properly
alleges this Court’s jurisdiction, in order to cure the jurisdictional defect.” Landmark Health
Solutions, LLC v. Not for Profit Hosp. Corp., 950 F. Supp. 2d 130, 135 (D.D.C. 2013). As the
2
See also Nepal v. United States Dep’t of State, 602 F. Supp. 3d 115, 123 (D.D.C. 2022) (TNF)
(“Standing ‘assesses whether that interest exists at the outset, while the doctrine of mootness
considers whether it exists throughout the proceedings’” (quoting Uzuegbunam v. Preczewski,
141 S. Ct. 792, 796 (2021))); Gjoci v. Dep't of State, Civ. A. No. 210294 (RCL), 2021 WL
3912143, at *8, *11 (D.D.C. Sept. 9, 2021) (RCL) (“The first relevant doctrine is “standing,”
which defines the sort of interest a litigant must possess to invoke federal jurisdiction at the suit's
outset . . . The Court ordinarily assesses standing from the time that the operative complaint was
filed”).
3
See U.S. State Dep’t, “Immigrant Visa Process Step 1: Submit a Petition,” available at
https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-
submit-a-petition.html (last accessed February 22, 2023).
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Court explains next, such a supplemental pleading would be futile, because Plaintiff’s current
complaint fails to state a claim upon which the Court may grant relief.
C. TRAC Factors
On the merits, Plaintiff insists that the State Department Defendants have not adjudicated
his application “within a reasonable time” as required by the Administrative Procedure Act, 5
U.S.C. § 555(b), and that the Court must “compel [that] agency action [as] unlawfully withheld
or unreasonably delayed.” Id. § 706(1). In this regard, Plaintiff also appears to press a claim
under the Mandamus Act, 28 U.S.C. § 1361, which is subject to the same standard applied to
claims under § 706(1) of the APA. Skalka v. Kelly, 246 F. Supp. 3d 147, 152 (D.D.C. 2017).
Although a court may order an agency “to perform a [mandatory] act, [i.e.,] to take action
upon a matter,” a court may not decide “how [the agency] shall act.” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 62 (2004). Here, there is no real allegation that Defendants
have simply refused to act entirely. Rather, Plaintiff insists that Defendants have “failed to
adhere to their legal duty to avoid unreasonable delays.” Compl. ¶ 31.
To determine whether Plaintiff has sufficiently alleged that agency action has been
“unreasonably delayed,” the Court applies the familiar “TRAC” factors laid out in
Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir.
1984):
(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 reasonable in the sphere of economic regulation are less tolerable
when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities of
a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced
by delay; and
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(6) the court need not find any impropriety lurking behind agency lassitude in order to hold
that agency action is unreasonably delayed.
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC,
750 F.2d at 80) (internal quotation marks omitted).
Whether delay is “unreasonable” depends in part upon “the complexity of the task at hand,
the significance (and permanence) of the outcome, and the resources available to the agency.”
Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003).
Moreover, the D.C. Circuit has noted the “importance of competing priorities in assessing the
reasonableness of an administrative delay.” Id. (internal citations and quotation marks omitted).
Critically here, the Court is bound by clear Circuit precedent that it may not grant relief where an
“order putting [the petitioner] at the head of the queue [would] simply move[ ] all others back one
space and produce[ ] no net gain.” In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991).
1. TRAC Factors One & Two
The D.C. Circuit has explained that the first TRAC factor—the time agencies take to make
decisions must be governed by a “rule of reason”—is the “most important,” although it is generally
reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc., 531 F.3d 849, 855
(D.C. Cir. 2008). The inquiry centers on “whether the agency’s response time . . . is governed by
an identifiable rationale.” Ctr. for Sci. in the Pub. Interest v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C.
2014). Because Congress has provided no statutory timeframe indicating how quickly it requires
the State Department to process visa applications, TRAC factor two is inapplicable.
In general, courts in this jurisdiction have regularly found that the Government applies a
“rule of reason” to the review of visa petitions by adjudicating applications in the order they were
filed. See, e.g., Palakuru v. Renaud, 521 F. Supp. 3d 46, 50 (D.D.C. 2021); Muvvala v. Wolf, No.
20-cv-02423, 2020 WL 5748104, at *3 (D.D.C. Sept. 25, 2020) (“Other federal courts have held
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that this first-in, first-out method of adjudication constitutes a ‘rule of reason’ and satisfies the first
TRAC factor.”). Simply put, the inquiry begins and ends with Defendants’ consistent application
of the “first-in, first-out” methodology.
That said, courts of this jurisdiction often look the length of delay as a rough yardstick to
determine whether that rule is, in fact, being applied. In this regard, courts in this Circuit have
routinely held that delays somewhat shorter than Plaintiff’s are not unreasonable. See, e.g.,
Ghadami v. United States Dep’t of Homeland Sec., No. CV 19-00397, 2020 WL 1308376, at *8
(D.D.C. Mar. 19, 2020) (ABJ) (“[M]any courts evaluating similar delays [i.e., 25 months] have
declined to find a two-year period to be unreasonable as a matter of law.”); Bagherian, 442 F.
Supp. 3d at 95 (“[T]he twenty-five-month delay at issue here is not unreasonable as a matter of
law, given the circumstances.”); Skalka v. Kelly, 246 F. Supp. 3d 147, 153-54 (D.D.C. 2017) (RJL)
(two-year delay “does not typically require judicial intervention”). Some courts have held that
delays of even three or more years may be reasonable. See, e.g., Fangfang v. Cissna, 434 F. Supp.
3d 43, 55 (S.D.N.Y. 2020); Yavari v. Pompeo, No. 2:19-cv-02524, 2019 WL 6720995, at *8 (C.D.
Cal. Oct. 10, 2019) (“District 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.”).
Plaintiff’s reliance on cases outside of this jurisdiction in which courts have granted relief
on shorter periods of delay misses the point entirely. First of all, the question is not whether a
length of time is “unfair” in some loose, equitable sense, but rather whether the delay is caused by
a “rule of reason” and the resources available to the agency. Norton, 336 F.3d at 1102. Moreover,
even if there has been some breakdown in that system, a court cannot reorder the queue absent
truly exceptional circumstances. See In re Barr Labs., Inc., 930 F.2d at 75. There has been no
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breakdown here; Defendants simply continue to face “an extraordinary backlog of visas across the
world” arising from the shutdown in global services during the height of the COVID-19 pandemic.
See Tate v. Pompeo, 513 F. Supp. 3d 132, 150 (D.D.C. 2021) (BAH). Although it is unfortunate
that this backlog has coincided with Plaintiff’s application, there is nothing about those
circumstances, even as merely pled, that permit judicial intervention.
2. TRAC Factor Four
Next, the Court finds that the fourth TRAC factor—“the effect of expediting delayed action
on agency activities of a higher or competing priority”—weighs against Plaintiff. TRAC, 750 F.2d
at 80. Reordering the queue does just that. Desai v. USCIS, No. 20-1005, 2021 WL 1110737, at
*7 (D.D.C. Mar. 22, 2021) (CKK); see also, e.g., Palakuru, 521 F. Supp. 3d at 53 (“Granting
[Plaintiff] relief here would advance his petition in front of others similarly situated—with respect
to the availability of visas and investment in a regional center—who filed their petitions earlier.”).
3. TRAC Factors Three & Five
The third and fifth factors are often considered together, and require the Court to consider
Plaintiff’s interests, health, and welfare. Ghadami, 2020 WL 1308376, at *9. In general, concerns
about separation from family or an inability to supervise an economic investment are insufficient
to weigh in favor of the plaintiff. See, e.g., Desai, 2021 WL 110737 at *7 (economic interests);
Thakker v. Renaud, No. 20-1133 (CKK), 2021 WL 1092269, at *7–8 (D.D.C. Mar. 21, 2021)
(family separation); Palakuru, 521 F. Supp. 3d at 53 (same). Plaintiff’s desire to be united with
his spouse and start a family, Compl. ¶ 37, ECF No. 1, is among those interests that do not warrant
relief. The Court notes again that, in light of the current backlog, tens of thousands of families
around the world are currently suffering the exact same injury, many of whom are without the
resources to attempt to skip the line.
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4. TRAC Factor Six
The sixth TRAC factor notes that the “Court need not find any impropriety lurking behind
agency lassitude in order to hold the agency action is unreasonably delayed.” Ghadami v. U.S.
Dep’t of Homeland Sec., Civ. A. No. 19-0397 (AJB) 2020 WL 1308376, at *9 (D.D.C. Mar. 10,
2020). Plaintiff concedes that there has been no bad faith. Opp. at 13.
Because Plaintiff’s APA claim fails, his mandamus action alleging unreasonable delay
necessarily fails as well. See Kangarloo v. Pompeo, 480 F. Supp. 3d 134, 142 (D.D.C. 2020)
(“Because Plaintiffs’ APA claim fails, mandamus is not available.”).
D. Due Process
Finally, Plaintiff contends on the merits that the State Department Defendants’ delay in
processing his Form I-130 visa on behalf of his wife violates his right “to fundamental fairness in
administrative adjudication” as “protected by the Due Process Clause of the Fifth Amendment to
the United States Constitution.” Compl. at ¶ 35. Although not explicitly stated, Plaintiff appears
to make a procedural due process argument. Plaintiff’s argument seems to be that Defendants
have violated his due process rights by not affording him constitutionally adequate procedures in
the visa application process, presumably due to the processing delay. Plaintiff’s due process
argument lacks merit and the Court will accordingly dismiss it.
To succeed on a procedural due process claim, “‘a plaintiff must show that there was a
liberty or property interest at stake’” first. Mahmood v. DHS, 2021 WL 5998385, at *9 (D.D.C.
Dec. 20, 2021) (quoting Smirnov v. Clinton, 806 F. Supp. 2d 1, 12 (D.D.C. 2011)). If so, then
the constitution requires, and only requires, “a meaningful opportunity to present” a case.
Mathews v. Eldridge, 424 U.S. 319, 332 (1976); see also Mahmood, 2021 WL 5998385, at *9.
Plaintiff did not allege a liberty interest as part of his due process claim in his complaint, see
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Compl. at ¶¶ 34–37, and because courts have determined that “there is no property right in an
immigrant visa”, Smirnov, 806 F. Supp. 2d at 12 (citing United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950)), Plaintiff has further failed to show that there is a
property interest at stake. Finally, because there is a process governed by a rule of reason
whereby applicants may petition the federal government for a visa, there can be no procedural
due process violation here. See Smirnov, 806 F. Supp. 2d at 12. Accordingly, Plaintiff’s Fifth
Amendment claims fail as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT Defendants’ [7] Motion to Dismiss or
for Summary Judgment and DISMISS Plaintiff’s [1] Complaint. An appropriate order
accompanies this Memorandum Opinion.
Date: March 1, 2023
/s/_______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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