Case Name in Immigration Case - Unavailable

1
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MUDHAR IBRAHIM KHALID
ALDURRA,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
STATE; U.S. EMBASSY IN AMMAN,
JORDAN; MARCO RUBIO, United
States Secretary of State; ROHIT NEPAL,
Charge d’Affaires at the U.S. Embassy in
Amman, Jordan,
Defendants.
Case No.: 25cv1322 DMS (DEB)
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
This case comes before the Court on Defendants’ motion to dismiss Plaintiff’s
Complaint. Plaintiff filed an opposition to the motion, and Defendants filed a reply. For
the reasons discussed below, the motion is granted in part and denied in part.
I.
BACKGROUND
Plaintiff Mudhar Ibrahim Khalid Aldurra is a United States citizen who resides in
San Diego, California. (Compl. at 3, ECF No. 1.) On August 14, 2021, Plaintiff filed a
visa petition with United States Customs and Immigration Services (“USCIS”) for his
mother Lubna Mohammed Abdo Al-Qayisi who is a citizen of Iraq living in Jordan. (Id.
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 1 of 7

2
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at 3, 5.) USCIS approved the visa petition on September 20, 2022, and the case was then
sent to the National Visa Center (“NVC”) for processing. (Id. at 5.) Plaintiff alleges, on
information and belief, that NVC completed its processing of the case and then sent it to
the U.S. Embassy in Amman, Jordan, for an interview. (Id.) Ms. Al-Qayisi’s interview
took place on September 24, 2023. (Id.) Following the interview, the consular officer
requested additional information, which Ms. Al-Qayisi submitted on September 26, 2023.
(Id. at 5-6.) Since that time, the petition has remained in administrative processing without
a final decision. (Id. at 6-7.)
On May 23, 2025, Plaintiff filed the present case seeking a writ of mandamus
compelling Defendants to adjudicate the petition. In the Complaint, Plaintiff alleges a
claim under the Administrative Procedure Act (“APA”) for “agency action unlawfully
withheld and unreasonably delayed”, and a claim for violation of due process under the
Fifth Amendment. After a status conference with the Court, Defendants filed the present
motion.
II.
DISCUSSION
Defendants move to dismiss Plaintiff’s APA and due process claims for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).1
A. Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the legal sufficiency of the claims asserted in the complaint. See Fed. R.
Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). In deciding a motion
to dismiss under Rule 12(b)(6), all material factual allegations of the complaint are
accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v.
1 Defendants also assert that to the extent Plaintiff is alleging a claim under the Mandamus Act, the Court
lacks subject matter jurisdiction to adjudicate that claim. Although the Complaint is “in the nature of
mandamus,” Plaintiff does not allege an actual claim under the Mandamus Act. Accordingly, the Court
does not address Defendants’ subject matter jurisdiction argument.
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 2 of 7

3
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A motion to dismiss should be
granted if a plaintiff’s complaint fails to contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
Generally, district courts may not consider material outside the pleadings when
assessing the sufficiency of a complaint under Rule 12(b)(6). Lee v. City of Los Angeles,
250 F.3d 668, 688 (9th Cir. 2001). Typically, if a party submits evidence from outside the
pleadings in support of a motion to dismiss under Rule 12(b)(6), and a court relies on that
evidence, the motion must be converted into a motion for summary judgment. Anderson
v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, “[a] court may take judicial notice
of matters of public record without converting a motion to dismiss into a motion for
summary judgment.’” Lee, 250 F.3d at 689.
B. APA Claim
Plaintiff’s first claim arises under the APA, 5 U.S.C. § 701, et seq. Specifically,
Plaintiff alleges Defendants’ delay in adjudicating Plaintiff’s visa application has been
unreasonable. Defendants respond there is no hard timeline for adjudicating visa
applications, their refusal to issue the visa was a final decision and no further action is
required, and any delay has not been unreasonable.
Although Defendants may be correct that there is no hard timeline in which they
must issue a final decision on Plaintiff’s visa application, there is no dispute the APA
requires government agencies to conclude matters presented to them “[w]ith due regard for
the convenience and necessity of the parties or their representatives and within a
reasonable time[.]” 5 U.S.C. § 555(b) (emphasis added). That is precisely Plaintiff’s
complaint here: Defendants have not adjudicated his visa application “within a reasonable
time.” The absence of a hard deadline is not a basis for dismissal of Plaintiff’s claim, and
thus the Court rejects Defendants’ first argument.
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 3 of 7

4
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Court also rejects Defendants’ second argument, which relies on Karimova v.
Abate, No. 23-5178, 2024 WL 3517852 (D.C. Cir. July 24, 2024). That unpublished, out-
of-circuit decision is not binding on this Court, and has not been followed by the District
of Columbia district court. See Ahmed v. Blinken, 759 F.Supp.3d 1, 10 (D.D.C. 2024)
(quoting D.C. Cir. R. 36(e)(2)) (declining to follow Karimova because it “is an unpublished
opinion, and ‘a panel’s decision to issue an unpublished disposition means that the panel
sees no precedential value in that disposition.’”). For the reasons set out in Ahmed, this
Court also declines to follow Karimova.
This leaves only Defendants’ argument based on the factors set out in Telecomms.
Research and Action Ctr. v. Federal Comms. Commission, 750 F.2d 70, 79-80 (D.C. Cir.
1984) (“TRAC”), which courts consider in determining whether agency action has been
unreasonably delayed. Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997).
These factors are:
(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 the delay[;] and (6) the court
need not “find any impropriety lurking behind agency lassitude in order to
hold that agency action is unreasonably delayed.”
Id. at 507 n.7 (quoting TRAC, 750 F.2d at 80).
Plaintiff does not dispute these factors govern the issue of whether Defendants’ delay
in adjudicating Plaintiff’s application has been reasonable. However, he does dispute
whether the Court should consider these factors on the present motion to dismiss. District
courts in the Ninth Circuit are split on this issue. Compare Mobayen v. Blinken, 780
F.Supp.3d 969, 984 (C.D. Cal. 2025); Sheikhalizadehjahen v. Gaudiosi, No. 2:24-cv-1136
SCR, 2024 WL 4505648, at *8 (E.D. Cal. Oct. 16, 2024); Salarian v. Blinken, No.
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 4 of 7

5
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23CV1315-LL-BJC, 2024 WL 4008758, at *4 (S.D. Cal. Aug. 30, 2024); Elmustafa v. U.S.
Citizenship & Immigr. Servs., No. 23-CV-2061-AJB-AHG, 2024 WL 3571728, at *3 (S.D.
Cal. July 29, 2024); Taherian v. Blinken, No. SACV 23-01927-CJC (ADSx), 2024 WL
1652625, at *4 (C.D. Cal. Jan. 16, 2024); Kang v. Jaddou, No. 2:21-CV-09488-RGK-E,
2022 WL 2189634, at *3 (C.D. Cal. Apr. 25, 2022); Hui Dong v. Cuccinelli, No.
CV2010030CBMPLAX, 2021 WL 1214512, at *4 (C.D. Cal. Mar. 2, 2021) (refusing to
consider TRAC factors on motion to dismiss) with El Centro Regional Medical Center v.
Blinken, No. 3:21-CV-00361-DMS-BDD, 2021 WL 3141205 (S.D. Cal. July 26, 2021);
Rezai v. Blinken, No. 3:24-cv-01016-CAB-JLB, 2024 WL 4830988, at *3-5 (S.D. Cal.
Nov. 18, 2024); Elmustafa v. U.S. Citizenship and Immigration Servs., No. 23-cv-2061-
AJB-AHG, 2024 WL 3571728, at *3 (S.D. Cal. July 29, 2024); Assadian v. Oudkirk, 694
F.Supp.3d 1310, 1317-18 (S.D. Cal. 2023); Varol v. Radel, 420 F.Supp.3d 1089, 1097-98
(S.D. Cal. 2019); Lajin v. Radel, No. 19cv52-MMA (BLM), 2019 WL 3388363, at *3-4
(S.D. Cal. July 26, 2019); Ibrahim Almandil v. Radel, No. 15cv2166 BTM (BGS), 2016
WL 3878248, at *2-3 (S.D. Cal. July 18, 2016) (considering TRAC factors when deciding
motions to dismiss). In El Centro Regional Medical Center, this Court considered the
TRAC factors when deciding a motion to dismiss, but did not address the district court split
on whether courts should address those factors on a motion to dismiss. After reviewing
the cases on that issue, however, the Court agrees with the reasoning of those courts that
have declined to consider the TRAC factors on a motion to dismiss. Specifically, the Court
agrees an analysis of the TRAC factors involves factually intensive questions, which are
generally inappropriate for resolution on a motion to dismiss. Mobayen, 780 F. Supp. 3d
at 969. An analysis of the TRAC factors would also require the Court “to look beyond the
face of plaintiffs’ complaint[,]”, Gonzalez v. United States Dep't of Homeland Sec., 500 F.
Supp. 3d 1115, 1130 (E.D. Cal. 2020), which is also generally inappropriate on a motion
to dismiss. For these reasons, this Court declines to consider the TRAC factors on the
present motion. Accordingly, Defendants’ motion to dismiss Plaintiff’s APA claim is
denied.
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 5 of 7

6
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. Due Process Claim
Plaintiff’s only other claim alleges a violation of his right to due process of law. It
is unclear whether Plaintiff is alleging a procedural due process claim or a substantive due
process claim, but either way, Defendants argue the claim must be dismissed. The Court
agrees with Defendants.
To state a procedural due process claim, Plaintiff must allege facts supporting “(1) a
deprivation of a constitutionally protected liberty or property interest, and (2) a denial of
adequate procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist.,
149 F.3d 971, 982 (9th Cir. 1998). Plaintiff has not set forth any facts to support either of
these elements, and thus, to the extent he is attempting to allege a procedural due process
claim, that claim is dismissed.
To the extent Plaintiff is attempting to allege a substantive due process claim, he
must set forth facts showing (1) the government has deprived him of life, liberty, or
property, Cancino Castellar v. McAleenan, 388 F. Supp. 3d 1218, 1230 (S.D. Cal. 2019)
(quoting Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004), and (2)
that the alleged deprivation “’shock[s] the conscience and offend[s] the community's sense
of fair play and decency.’” Gorney v. Veterans Admin., No. CV-18-00531-TUC-CKJ,
2020 WL 5535757, at *6 (D. Ariz. Sept. 15, 2020) (quoting Marsh v. Cnty. of San Diego,
680 F.3d 1148, 1154 (9th Cir. 2012)). As with the procedural due process claim, Plaintiff
has failed to allege any facts to support either of these elements. Accordingly, to the extent
he is attempting to allege a substantive due process claim, that claim is dismissed as well.
IV.
CONCLUSION
For the reasons set out above, Defendants’ motion to dismiss is granted in part and
denied in part. Specifically, the Court denies the motion to dismiss Plaintiff’s APA claim,
but grants the motion to dismiss Plaintiff’s due process claim. Although Plaintiff did not
request leave to amend to cure any pleading defects on his claims, the Court grants Plaintiff
leave to file a First Amended Complaint that cures the pleading deficiencies on his due
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 6 of 7

7
25cv1322 DMS (DEB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
process claim. If Plaintiff wishes to file a First Amended Complaint, he shall do so on or
before January 15, 2026.
IT IS SO ORDERED.
Dated: January 8, 2026
Case 3:25-cv-01322-DMS-DEB Document 10 Filed 01/08/26 PageID.<pageID>
Page 7 of 7