Opinion
CV 23-00562-TUC-MA
07-24-2024
Miguel Angel Fimbres, Plaintiff, v. Eric S. Cohan; et al., Defendants.
ORDER
Honorable Michael A. Ambri United States Magistrate Judge
Pending before the court is the defendants' motion to dismiss pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6), filed on March 18, 2024. Doc. 23. The plaintiff filed an amended response on March 28, 2024. Doc. 25. The defendants filed a reply on April 25, 2024. Doc. 28.
The Magistrate Judge presides over this action in accordance with 28 U.S.C. § 636(c). Doc. 22.
The plaintiff in this action, Miguel Angel Fimbres, filed a combined Petition for Writ of Mandamus and Complaint for injunctive relief. Doc. 1. He claims, among other things, that the defendants have unreasonably delayed their adjudication of his parents' visa applications to enter this country. Doc. 1, p. 6.
In the pending motion, the defendants argue that the action is moot because the petitions have already been adjudicated; the consular nonreviewability doctrine precludes relief; mandamus in unavailable because the consular officer has no mandatory, non-discretionary duty to act; and the plaintiff's Administrative Procedure Act (APA) claim is not plausible under the TRAC factors. Doc. 23, pp. 5-17 (citing Telecomms. Rsch. & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984).
The motion will be denied. The action is not moot, and the plaintiff has alleged a claim upon which relief can be granted.
Background
In February 2021, Fimbres submitted visa petitions with USCIS (U.S. Citizenship and Immigration Services) for his mother and father. Complaint, Doc. 1, p. 5. His parents were interviewed in April 2023 by the U.S. Consulate General in Ciudad Juarez. Id. After the interview, Fimbres's parents learned that their visa petitions “were placed in administrative processing pursuant to the Immigration and Nationality Act (‘INA') § 221(g).” Doc. 1, p. 6. Fimbres and his parents have inquired about the status of the petitions many times, but they have “received no meaningful responses.” Id.
On December 15, 2023, Fimbres filed the instant action in this court. Doc. 1. He claims that (1) the defendants have unreasonably delayed adjudication of his parents' petitions under the Administrative Procedure Act, 5 U.S.C. § 706(1), 8 U.S.C. §§ 1153(a) and 1202(b); (2) this court has the authority under the Mandamus Act, 28 U.S.C. § 1361, to compel the defendants to act; and (3) his substantive and procedural due process rights have been violated. Doc. 1, pp. 6-9.
In the pending motion, the defendants argue pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6) that the action is moot because the petitions have already been adjudicated; the consular nonreviewability doctrine precludes relief; mandamus in unavailable because the consular officer has no mandatory, non-discretionary duty to act; and the plaintiff's APA claim is not plausible under the TRAC (Telecomms. Rsch. & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984)) factors. Doc. 23, pp. 5-17.
Standard of Review
A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction to entertain a claim. “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). When analyzing a facial challenge to the court's jurisdiction, the court accepts as true the factual allegations contained in the complaint and draws all reasonable inferences in the plaintiff's favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004), overruled on other grounds by Munoz v. Superior Court of Los Angeles Cnty., 91 F.4th 977, 980 (9th Cir. 2024). “If the moving party converts the motion to dismiss into a factual motion by presenting affidavits or other evidence prop erly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. (punctuation modified). Because federal courts are courts of limited jurisdiction, the party invoking the jurisdiction of the court has the burden of proof. Advanced Integrative Med. Sci. Inst., PLLC v. Garland, 24 F.4th 1249, 1256 (9th Cir. 2022).
“A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). The claim must allege a legally cognizable theory of relief and include factual allegations sufficient to support that theory. Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011).
“All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9thCir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001). But the court need not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Id.
“To survive a 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.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (punctuation modified). “Dismissal is proper where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” Id.
Discussion
First, the defendants argue that this case is moot because the government has already adjudicated Fimbres's parents' visa applications and can give him no further relief. Doc. 23, p. 5. They quote the rule as follows: “The test for mootness is whether the court can give a party any effective relief if it decides the matter on the merits in his favor.” Id. (citing Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988)).
In support of their argument, the defendants have submitted the declaration of Matthew McNeil, “an attorney adviser in the Office of Assistant Legal Adviser for Consular Affairs.” Doc. 23-1, p. 2, ¶ 1. McNeil has reviewed the Consular Consolidated Database and asserts that Fimbres's parents' visa applications were “refused” by the consular officer on April 25, 2023, the date of the consular interviews. Id., ¶ 9. However, “[t]he consular officer determined that additional screening was required to address an apparent ground of ineligibility.” Id. McNeil further states that “[a]s of the date of this declaration, the additional screening is ongoing, and Plaintiff's parents' visa applications remain refused . . . .” Id., ¶ 10.
The defendants assert that, “[w]hen the consular officer refused Plaintiff's parents' visa applications on April 25, 2023, he took the very action required under INA § 221(g), 8 U.S.C. § 1201(g) and 22 C.F.R. § 42.81(a).” Id. (citing Ex. A ¶ 9). Accordingly, they reason, this court cannot give Fimbres any effective relief, and this case is moot. Doc. 23, p. 5.
The court construes the defendants' argument as a factual attack on this court's jurisdiction pursuant to Rule 12(b)(1). Fed.R.Civ.P. Assuming arguendo that McNeil's declaration is correct, the court finds that this action is not moot.
Fimbres claims that the defendants have unreasonably delayed adjudication of his parents' petitions under the Administrative Procedure Act, 5 U.S.C. § 706(1), 8 U.S.C. §§ 1153(a) and 1202(b). According to McNeil's declaration, the parents' visa applications were initially refused but are currently undergoing “additional screening.” Doc. 23-1, p. 2, ¶ 10. The court will construe the Complaint as alleging that this additional screening is part of the adjudication process, and this screening has been unreasonably delayed. If Fimbres wins his case, this court can order the defendants to complete this additional screening without unreasonable delay. (See below.) Fimbres has alleged a harm from which this court can grant “effective relief if it decides the matter on the merits in his favor”; the case is not moot. Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988); see, e.g., Moghaddam v. Pompeo, 424 F.Supp.3d 104, 113 (D.D.C. 2020) (The plaintiffs' claim that the defendants must timely adjudicate his wife's visa application was not moot because even though her initial application was refused, the plaintiffs sought adjudication of her eligibility for a waiver, and “they view[ed] the waiver eligibility determination as part of the visa application process.”); see also Sarlak v. Pompeo, 2020 WL 3082018, at *3 (D.D.C. 2020) (“[A] visa applicant whose case previously displayed as being in ‘Administrative Processing' on his or her case status page now displays as being ‘refused' . . . the change is ultimately cosmetic . . . .”).
The defendants further argue that this case should be dismissed pursuant to Rule 12(b)(6) because the “consular nonreviewability doctrine bars Plaintiff's claims.” Doc. 23, p. 6.
“Normally a consular official's discretionary decision to grant or deny a visa petition is not subject to judicial review.” Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997). “However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists.” Id.
In this case, Fimbres does not challenge a final decision of the counsel. He challenges the counsel's unreasonable delay in reaching a final decision. Accordingly, the nonreviewability doctrine does not bar the plaintiff's claims. See Zandieh v. Pompeo, 2020 WL 4346915, at *3 (D.D.C. July 29, 2020) (“This jurisdictional bar, however, does not apply where the government has not made a final visa decision.”) (punctuation modified).
The defendants' argument seems to be that if the status of the visas is “refused” then a final decision has been made even though additional screening is ongoing. The court does not agree. Labeling the visas as “refused” does not change the fact that the visas are still being processed. And if they are still being processed, a final determination has not yet been made. See Billoo v. Baran, 2022 WL 1841611, at *4 (C.D. Cal. Mar. 18, 2022) (Even though the Department of State's website lists the application as “Refused,” the applicant “has not received a final determination on his visa application.”).
The defendants further argue that “Plaintiff is not entitled to mandamus or APA relief where a consular officer no longer has any mandatory, non-discretionary duty to act.” Doc. 23, p. 9 . Specifically, they argue that “because Plaintiff cannot establish the State Department has a non-discretionary duty to complete any additional screening and readjudicate his parents' visa applications and issue another decision, he cannot establish any agency action was withheld unlawfully or delayed unreasonably.” Id.
This argument assumes that the visa applications are already subject to a final decision and Fimbres is asking the defendants to complete an additional screening and readjudicate the applications. However, this court interprets McNeil's declaration as stating that the visas are not subject to a final decision and are already undergoing additional screening. Under these circumstance, Fimbres is entitled to bring an “unreasonable delay” claim pursuant to the Administrative Procedure Act (APA). See 5 U.S.C. § 706(1) (1982) (“The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed ....”). Having decided that Fimbres has a viable APA claim, the court need not address whether it also has jurisdiction under the Mandamus Act, 29 U.S.C. § 1361. Vaz v. Neal, 33 F.4th 1131, 1135 (9thCir. 2022) (“Because mandamus relief and relief under the APA are ‘in essence' the same, when a complaint seeks relief under the Mandamus Act and the APA and there is an adequate remedy under the APA, we may elect to analyze the APA claim only.”) (punctuation modified); see, e.g., Moghaddam v. Pompeo, 424 F.Supp.3d 104, 121-122 (D.D.C. 2020); Kashkool v. Chertoff, 553 F.Supp.2d 1131, 1135, n. 4 (D. Ariz. 2008).
Last, the defendants argue that the “Plaintiff fails to state a plausible APA claim under the TRAC factors.” Doc. 23, p. 11. The TRAC factors are six points of inquiry that the court may consider when deciding if an agency's delay “is so egregious as to warrant mandamus.” Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70, 79-80 (D.C. Cir. 1984).
On a motion to dismiss, however, the plaintiff need only allege a legally cognizable theory of relief and offer factual allegations sufficient to support that theory. See Hinds Investments, L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). Fimbres has done that. See, e.g., Moghaddam v. Pompeo, 424 F.Supp.3d 104, 117 (D.D.C. 2020) (“At the motion to dismiss stage, this Court need not consider whether the agency delay alleged here is unreasonable.”); see also Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022) (“[T]he requirements for obtaining relief under the APA go to the merits, not to subject matter jurisdiction.”).
IT IS ORDERED that the defendants' motion to dismiss pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6), filed on March 18, 2024, is DENIED. Doc. 23.