Azadani v. Gaudiosi et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 24-cv-00825-CNS
ALI NEJATBAKHSH AZADANI,
Plaintiff,
v.
ERIC GAUDIOSI, in an official capacity as Deputy Chief of Mission, U.S. Embassy in the
United Arab Emirates, and
ANTHONY BLINKEN, in official capacity as Secretary of the U.S. Department of State,
Defendants.
ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Petition for Writ of
Mandamus and Complaint for Injunctive Relief. ECF No. 9. For the following reasons, the
Court grants the motion in part and denies it in part.
I. 	BACKGROUND
Plaintiff, a U.S. citizen living in Colorado, seeks an order expediting the re-
adjudication of his mother’s visa application. ECF No. 1. In September 2020, Plaintiff filed
an I-130 petition with the United States Citizenship and Immigration Services (USCIS) on
behalf of his mother, Haydeh Agha Hosseini Naeini, to begin her process of becoming a
lawful permanent resident. 1 Id., ¶¶ 2, 20. USCIS approved the petition in May 2021. Id.,
¶¶ 3, 19. Ms. Naeini was interviewed by a consular officer of the U.S. Embassy in the
1 Plaintiff also filed a petition on behalf of his father. His father’s petition was approved, and his visa was
issued. Id. ¶ 8.
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United Arab Emirates in June 2023. Id., ¶ 21. On June 5, 2023, Ms. Naeini was provided
a notice of refusal pursuant to the Immigration and Nationality Act (INA) § 221(g). Id., ¶
23; ECF No. 10 at 8 (reply). A refusal under INA § 221(g) places an application into
administrative processing. Id., ¶ 24. The notice stated that “this refusal may be overcome
once 	the 	missing 	documentation 	is 	submitted 	and/or 	administrative 	processing 	is
completed.” Id. On June 26, 2023, the consular officer requested that Ms. Naeini complete
a DS-5535 “Supplementary Questions for Visa Applicants,” and wrote to her, “Dear
applicant, Your case is subject to administrative processing. Your application cannot be
finalized until you have submitted this questionnaire.” Id. Ms. Naeini promptly completed
and submitted the questionnaire. Id. Since then, her application has remained in
administrative processing. Id.
Plaintiff filed suit on March 26, 2024. ECF No. 1. Plaintiff alleges that Defendants
have failed to adjudicate the visa application within a reasonable time and requests that
the Court compel Defendants to adjudicate Ms. Naeini’s visa application. Id. Defendants
filed a motion to dismiss on June 11, 2024.
II. 	LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
To survive a Rule of Civil Procedure 12(b)(1) motion to dismiss, “a plaintiff must
demonstrate that the court has subject matter jurisdiction.” Audubon of Kan., v. U.S. Dep’t
of Interior, 67 F.4th 1093, 1108 (10th Cir. 2023). “A Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). “The party invoking federal
jurisdiction has the burden to establish that it is proper, and there is a presumption against
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its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotations omitted).
A defendant may challenge subject matter jurisdiction under Federal Rule 12(b)(1)
by “facial[] attack [of] the complaint’s allegations.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1000, 1002 (10th Cir. 1995). When a party brings a facial attack, courts
must accept a complaint’s allegations as true. Safe Streets Alliance v. Hickenlooper, 859
F.3d 865, 877 (10th Cir. 2017).
B. Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Based on this standard,
dismissal may occur “either because [the claim] asserts a legal theory not cognizable as
a matter of law or because the claim fails to allege sufficient facts to support a cognizable
legal claim.” Bd. Of Cnty. Comm’rs v. Brown Group Retail, Inc., 598 F.Supp.2d 1185,
1191 (D. Colo. 2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true and interpreted in the light most favorable to the non-moving party, to
state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Plausible” in this context
refers “to the scope of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then the [claimant] ‘ha[s] not
nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “Plausible,”
however, “does not refer to the likelihood that the allegations can be proven or even that
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the allegations are true.” Bd. Of Cnty. Commr’s, 598 F. Supp. 2d at 1191–92. Indeed, “a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.” Dias v. City &
Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotations and citation
omitted).
III. 	ANALYSIS
Plaintiff brings an unreasonable delay claim under the Administrative Procedure
Act (APA), 5 U.S.C. § 706(1), and the Mandamus Act. 2 Section 706 states that “the
reviewing court shall (1) compel agency action unlawfully withheld or unreasonably
delayed.” The Tenth Circuit allows § 706(1) failure-to-act claims when a plaintiff identifies
a “failure to take an agency action” that is “(1) discrete and (2) legally required.” Audubon
of Kansas, Inc. v. United States Dep’t of the Interior, 67 F.4th 1093, 1108 (10th Cir. 2023).
Adjudication of a submitted visa application is a discrete and legally required agency
action. Under 22 C.F.R. § 42.81(a), “the consular officer must issue the visa, refuse the
visa under INA 212(a) or 221(g) or other applicable law or, pursuant to an outstanding
order under INA 243(d), discontinue granting the visa.” Separately, § 555(b) of the APA
provides that, “[w]ith due regard for the convenience and necessity of the parties or their
representatives and within a reasonable time, each agency shall proceed to conclude a
matter presented to it.” As a threshold matter, unreasonable delay claims are available
under § 706(1) to compel adjudication of submitted visa applications because such
adjudication is a discrete and required action.
2 When the relief sought through the Mandamus Act is essentially the same as that sought under the APA,
courts can consider the claim under the APA alone. Indep. Mining Co. v. Babbit, 105 F.3d 502, 507 (9th
Cir. 1997) (“Because the relief sought is essentially the same, in the form of mandamus, we elect to analyze
IMC's entitlement to relief under the APA.”). Therefore, the Court considers the claim only under the APA.
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Here, Defendants argue that judicial review is unavailable because it is blocked by
the doctrine of consular nonreviewability. They also argue that Plaintiff failed to plausibly
allege an unreasonable delay claim or a due process claim, and that the Mandamus Act
claim should be dismissed because APA relief is available. The Court will address each
of these arguments in turn.
A. Final Agency Action and the Consular Nonreviewability Doctrine
Defendants first argue that Plaintiff’s claims must be dismissed because a final
agency action has already occurred, so the request for the Court to compel adjudication
is moot. Similarly, Defendants argue that the consular nonreviewability doctrine bars
judicial review of this action because the denial constitutes a “visa decision,” which is not
reviewable under the doctrine. The Court disagrees on both counts.
The consular nonreviewability doctrine provides that “a consular official’s decision
to issue or withhold a visa is not subject to judicial review,” unless Congress specifies
otherwise. Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (collecting
cases). However, there are exceptions to this doctrine. Relevant here, the consular
nonreviewability doctrine does not apply where the plaintiffs “do not seek judicial review
of a consular decision, but instead seek a final decision on their applications.” Didban v.
Pompeo, 435 F. Supp. 3d 168, 174 (D.D.C. 2020); see also Patel v. Reno, 134 F.3d 929,
931–32 (9th Cir. 1997).
Courts disagree as to whether a denial placing an application into administrative
processing counts as a final decision. See, e.g., Aghabeigi v. Dep’t of State, No. 23-1167
2024 WL 1344412, at *9 (D.D.C. March 29, 2024) (holding that consular nonreviewability
doctrine does not preclude the court from reviewing adjudication of visa application in
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administrative processing because no final decision had been made); Ahmed v. Blinken,
No. 24-153 (LLA), 2024 WL 4903771, at *4 (D.D.C. Nov. 27, 2024) (same); Farahani v.
Laitinen, No. 1:23-CV-922, 2024 WL 2785043, at *4 (M.D. N.C. May 30, 2024) (the
position that denial placing visa into administrative processing is final “contradicts the
persuasive reasoning of numerous courts and would, in effect, permit administrative
processing to carry on indefinitely without judicial review.”); Abbassi v. Gaudiosi, No. 1:23-
cv-01573-CDB, 2024 WL 1995246, at *4 (E.D. Cal. May 6, 2024) (“the Court agrees with
what it perceives as the prevailing position among most other district courts to have
considered the issue . . . finding that the doctrine does not bar review of an as-yet final
adjudication of a visa application in administrative processing.”); but see Conley v. U.S.
Dep’t of State, No. 24-10131-FDS, 2024 WL 1640074, at *1, *4 (D. Mass. Apr. 16, 2024)
(holding that denial placing visa application into administrative processing is a final
decision, so plaintiff failed to state an unreasonable delay claim); Hussein v. Beecroft,
782 Fed. App’x 437, 440, 442 (6th Cir. 2019) (holding that denial placing application in
administrative processing is a decision, so consulate had satisfied its duty to adjudicate
and mandamus relief was unavailable); Senobarian v. Blinken, Case No. 2:23-cv-07208-
ODW, 2024 WL 897566, at *3 (C.D. Cal. Feb. 29, 2024) (same); Tariq v. Blinken, No.
3:21-cv-02841-M, 2023 WL 2661543, at *1 (N.D. Tex. Jan. 31, 2023) (same); Karimova
v. Abate, No. 23-5178, 2024 WL 3517852, at *6 (D.C. Cir. July 24, 2024) (unpublished)
(affirming dismissal of § 706(1) claims because there is no duty to re-adjudicate a refused
application).
The latter group of cases reason that a denial is a final decision, even if the denial
“might be subject to reconsideration in the future” because “almost any agency decision
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could be reconsidered or revised.” Conley, 2024 WL 1640074, at *1, *4 (D. Mass. Apr.
16, 2024). Because the regulations only require a consular officer to issue or refuse a
visa, once they have denied the visa (even if it is still in administrative processing), there
is no longer any regulatory duty to act on the application. See Karimova, 2024 WL
3517852, at *6.
The Court, however, is persuaded by the first line of cases. While it is true that the
consular officer issued a denial, that is not the end of the process. An application placed
in administrative processing can still be granted, after more information is provided. A
denial placing an application into administrative processing is different from other agency
decisions 	because 	there 	is 	more 	than 	a 	“mere 	possibility 	that 	an 	agency 	might
reconsider.” Sackett v. E.P.A., 566 U.S. 120, 127 (2012). Instead, the application was
denied and placed in administrative processing, which necessarily involves additional
consideration and a subsequent final decision. “The status of ‘administrative processing’
coupled with the government’s request of the visa applicant for additional information
suggests the application ‘has not been adjudicated to a final refusal.’” Abbassi, 2024 WL
1995246, at *4 (citing Gonzalez v. Baran, No. 2:21-cv-05902-CAS-ASx, 2022 WL
1843148, at *3 (C.D. Cal. Jan. 11, 2022)). The language of Ms. Naeini’s denial indicates
that it is not a final decision: “[y]our case is subject to administrative processing. Your
application cannot be finalized until you have submitted this questionnaire.” ECF No. 10
at 8 (emphasis added). The Court finds that the consular officer did not make a final
decision, so the doctrine of consular nonreviewability does not apply.
This reasoning similarly preserves APA review. As the District of D.C. held, “[i]f
Plaintiffs’ applications are still under consideration, such that their visas may yet issue,
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then the [State] Department's obligations under 5 U.S.C. §§ 555(b) and 706(1) continue
to apply with equal force.” Khazaei v. Blinken, No. 23-1419 (JEB), 2023 WL 6065095, at
*5 (D.D.C. Sept. 18, 2023). Again, while the consular officer issued a “denial,” that denial
did not end the process, as the application is still under consideration. Thus, the
unreasonable delay claim is justiciable.
B. Failure to State an Unreasonable Delay Claim
Defendants next argue that Plaintiff failed to state a claim for unreasonable delay
under the APA. The Tenth Circuit analyzes unreasonable delay claims under § 706(1)
using the five Qwest factors: (1) the extent of the agency’s delay, (2) the reasonableness
of 	the 	delay 	in 	the 	context 	of 	the 	legislation 	authorizing 	agency 	action, 	(3) 	the
consequences of the delay, (4) administrative difficulties bearing on the agency's ability
to resolve an issue, and (5) the complexity of the task envisioned by a court's remand
order. Qwest Commc’ns Int’l Inc. v. Fed. Commc’ns Comm’n, 398 F.3d 1222, 1238–39
(10th Cir. 2005).
However, various courts have explained that a “claim of unreasonable delay is
necessarily fact dependent and thus sits uncomfortably at the motion to dismiss stage
and should not typically be resolved at that stage.” Barrios Garcia v. U.S. Dep’t of
Homeland Sec., 25 F.4th 430, 451 (6th Cir. 2022) (quoting Gonzalez, 985 F.3d at 375);
see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C.
Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and
nuanced task requiring consideration of the particular facts and circumstances before the
court.”). The Court agrees. The Qwest factors are necessarily fact dependent and there
is not enough information in the pleadings to adequately analyze them. Plaintiffs
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adequately pleaded each of the Qwest factors. The claims have been pending for about
18 months; such a delay may be unreasonable in light of the circumstances and the 180-
day target for processing immigration benefit applications laid out in 8 U.S.C. § 1571(b);
Plaintiff faces stress, emotional hardship, and expense caused by his mother’s inability
to immigrate to United States; and the administrative difficulties and complexity of the task
are unclear and potentially outweighed by the other factors. ECF No. 1, ¶¶ 8–11, 31; ECF
No. 10 at 19. Because Plaintiffs adequately pleaded unreasonable delay, the Court
denies the motion to dismiss the APA claims.
C. Mandamus Act Claim
Defendants next argue that the Court should dismiss Plaintiff’s mandamus act
claim because he has a remedy under the APA. The Court agrees.
The Mandamus Act provides the district courts with original jurisdiction of “any
action in the nature of mandamus to compel . . . any agency thereof to perform a duty
owed to the plaintiff.” 28 U.S.C. 1361. Mandamus relief is available only where a plaintiff
“has no other adequate remedy” under the law. Rios v. Ziglar, 398 F.3d 1201, 1206 (10th
Cir. 2005). Because Plaintiff has alleged an APA claim, mandamus relief is not available.
The Court, therefore, grants the motion to dismiss the Mandamus Act claims. See Lara-
Esperanza v. Mayorkas, No. 23-cv-01415-NYW-MEH, 2023 WL 7003418, at *7 (D. Colo.
Oct. 24, 2023) (dismissing mandamus claim without prejudice after finding that the court
had jurisdiction to hear the APA claim).
D. Due Process Claim
Finally, Defendants argue that the due process claims must be dismissed because
Plaintiff does not allege a protected interest. The Court agrees.
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Government action violates procedural due process when it “deprives a person of
life, liberty, or property without fair procedures.” United States v. Deters, 143 F.3d 577,
582 (10th Cir. 1998) (citing United States v. Salerno, 481 U.S. 739, 747 (1987)).
Substantive 	due 	process 	protects 	“a 	small 	number 	of 	‘fundamental 	rights’ 	from
government interference regardless of the procedures used.” Id. For both types of due
process claims, a plaintiff must first “demonstrate a property or liberty interest in the
benefit for which protection is sought.” Painter v. Shalala, 97 F.3d 1351, 1357 (10th Cir.
1996). Plaintiff has not done so.
Courts have consistently held that adult citizens do not have a constitutional
interest in having their noncitizen parent immigrate to the United States. See, e.g,
Khachatryan v. Blinken, 4 F.4th 841, 860 (9th Cir. 2021); Oforji v. Ashcroft, 354 F.3d 609,
618 (7th Cir. 2003) (“The law is clear that citizen family members of illegal aliens have no
cognizable interest in preventing an alien’s exclusion and deportation.”); Niknam v. U.S.
Dep’t of State, Civil Action No. 23-cv-01380-PAB-SBP, 2024 WL 709636, at *5 (D. Colo.
Feb. 21, 2024). Plaintiff alleges that the right to have federal law equitably enforced and
the right to family unity are qualifying interests; however, Plaintiffs do not provide any
support for these claims, and numerous courts have rejected these arguments. See id.
Because Plaintiff has not identified a constitutionally protected interest sufficient to
support a due process claim, this claim is dismissed.
IV. CONCLUSION
Consistent with the above analysis, the Court GRANTS Defendant’s Motion to
Dismiss as to the Mandamus Act claim (claim 2) and the Due Process claim (claim 3).
The Court DENIES the motion to dismiss as to the APA claim (claim 1).
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DATED this 6th day of January 2025.
BY THE COURT:
______________________________
Charlotte N. Sweeney
United States District Judge
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