Zargarian v. Oudkirk

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ED MEHDI ZARGARIAN, No. 2:24-cv-02008-DAD-JDP 12 Plaintiff, 13 v. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 14 SCOTT M. OUDKIRK, et al., MOTION TO DISMISS AND DENYING DEFENDANTS’ MOTION FOR SUMMARY 15 Defendants. JUDGMENT 16 (Doc. No. 6) 17 18 19 This matter is before the court on defendants’ motion to dismiss and motion for summary 20 judgment filed on September 24, 2024. (Doc. No. 6.) On October 31, 2024, the pending motion 21 was taken under submission pursuant to Local Rule 230(g). (Doc. No. 11.) For the reasons 22 explained below, defendants’ motion to dismiss will be granted in part and denied in part, and 23 defendants’ motion for summary judgment in their favor will be denied. 24 BACKGROUND 25 Plaintiff Ed Mehdi Zargarian brings this action against defendants Scott M. Oudkirk, 26 Deputy Chief of Mission for the U.S. Embassy in Turkey, and Antony Blinken, former Secretary 27 of the U.S. Department of State, based upon defendants’ alleged delay in processing the visa 28 ///// 1 application of plaintiff’s sister, Azar Zargarian. (Doc. No. 1.) On July 24, 2024, plaintiff filed 2 his complaint initiating this civil rights action, alleging as follows. (Id.) 3 In July 2009, plaintiff properly filed with United States Citizenship and Immigration 4 Service (“USCIS”) an I-130 form seeking to establish a qualifying relationship with his sister 5 who lives in Iran to lay the groundwork for her visa application. (Id. at ¶ 16.) In February 2019, 6 USCIS approved the I-130, and in September 2023, plaintiff’s sister was interviewed at the U.S. 7 Embassy in Turkey in connection with her visa application. (Id. at ¶¶ 17, 19.) After that 8 interview, plaintiff’s sister learned that the application was placed in administrative processing 9 pursuant to Immigration and Nationality Act (“INA”) § 221(g). (Id. at ¶ 20.) She was given the 10 form DS5535 to submit additional documents, which she subsequently filled out and submitted 11 on September 29, 2023. (Id.) In March 2024 and June 2024, plaintiff sent emails inquiring with 12 the U.S. Embassy in Turkey about the status of his sister’s visa application. (Id. at ¶ 22.) 13 Plaintiff received the following identical form response to his inquiry each time. (Id.) 14 Your application is still undergoing required administrative processing. Unfortunately, we are unable to predict how long 15 administrative processing will take for a given case, and we are unable to influence the completion of the process. We will send you 16 a notification email as soon as we receive an update. Likewise, if we need further information, then we will immediately contact you via 17 email. 18 (Id.) 19 Since the September 2023 interview, plaintiff and his sister have inquired as to the status 20 of her visa application on numerous occasions and received no meaningful responses. (Id. at 21 ¶ 23.) “Upon information and belief, it is unclear what steps, if any Defendants are actually 22 taking to complete adjudication of [plaintiff’s sister’s] visa application.” (Id.) 23 Plaintiff has been separated from his sister during the application process and has been 24 unable to visit her over the past four years due to work constraints and safety concerns as a citizen 25 of the United States. (Id. at ¶¶ 6, 8.) As a result of that separation, plaintiff and his sister have 26 experienced significant personal, emotional, and financial hardship. (Id. ¶ 6.) Plaintiff fears for 27 the safety of his sister, a 65-year-old retired woman living alone in Iran, where civil and political 28 unrest poses safety challenges to women. (Id. at ¶ 7.) 1 On July 24, 2024, plaintiff filed the operative complaint alleging three causes of action: 2 (1) violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1); (2) Mandamus 3 Act; and (3) deprivation of procedural due process rights in violation of the Fifth Amendment. 4 (Id. at ¶¶ 24–40.) Plaintiff seeks relief in the form of an order compelling defendants to 5 adjudicate his sister’s visa application. (Id. at ¶¶ 28, 35, 37, 41.) 6 The court also notes the following undisputed facts.1 The consular officer refused 7 plaintiff’s visa application “under INA § 221(g)[,]” determining that “additional security 8 screening was required.” (DUF ¶ 7.) Then, “consular staff at the U.S. Embassy in Ankara sent a 9 list of questions consistent with Form DS-5535, Supplemental Questions for Visa Applicants, to” 10 plaintiff’s sister. (DUF ¶ 8.) “The additional security screening is ongoing[.]” (DUF ¶ 9.) 11 On September 24, 2024, defendants filed the pending motion to dismiss or, in the 12 alternative, motion for summary judgment in their favor. (Doc. No. 6.) On October 8, 2024, 13 plaintiff filed his opposition, and on October 18, 2024, defendants filed their reply. (Doc. Nos. 9, 14 10.) On November 18, 2024 and March 26, 2025, defendants filed notices of supplemental 15 authority. (Doc. Nos. 12, 15.) On April 9, 2025, plaintiff filed a response to defendants’ March 16 26, 2025 notice of supplemental authority. (Doc. No. 16.) 17 LEGAL STANDARDS 18 A. Motion to Dismiss 19 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 20 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 21 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 22 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 23 F.2d 696, 699 (9th Cir. 1988). A plaintiff is required to allege “enough facts to state a claim to 24 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 25 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 26 27 1 The relevant facts that follow are undisputed and are derived from the undisputed facts as stated by defendants (Doc. No. 6-1 (“DUF”)) and responded to by plaintiff (Doc. No. 9 at 7), as well as 28 the affidavit filed in support of defendants’ motion for summary judgment (Doc. No. 6-2). 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, 6 the court need not assume the truth of legal conclusions cast in the form of factual allegations. 7 U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not 8 require detailed factual allegations, “it demands more than an unadorned, the-defendant- 9 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers 10 mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 11 Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements 12 of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is 13 inappropriate to assume that the plaintiff “can prove facts that it has not alleged or that the 14 defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. 15 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 16 B. Motion for Summary Judgment 17 Summary judgment is appropriate when the moving party “shows that there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). 20 In summary judgment practice, the moving party “initially bears the burden of proving the 21 absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 22 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party 23 may accomplish this by “citing to particular parts of materials in the record, including 24 depositions, documents, electronically stored information, affidavits or declarations, stipulations 25 (including those made for purposes of the motion only), admissions, interrogatory answers, or 26 other materials,” or by showing that such materials “do not establish the absence or presence of a 27 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 28 Fed. R. Civ. P. 56(c)(1)(A), (B). If the moving party will bear the burden of proof on an issue at 1 trial, “the movant must affirmatively demonstrate that no reasonable trier of fact could find other 2 than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 3 2007). When the non-moving party bears the burden of proof at trial, “the moving party need 4 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 5 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 6 Indeed, after adequate time for discovery and upon motion, summary judgment should be entered 7 against a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 9 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 10 nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a 11 circumstance, summary judgment should be granted, “so long as whatever is before the district 12 court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 13 323. 14 If the moving party meets its initial responsibility, the burden then shifts to the opposing 15 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 16 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 17 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 18 of its pleadings but is required to tender evidence of specific facts in the form of affidavits or 19 admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. 20 P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 21 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 22 summary judgment.”). The opposing party must demonstrate that the fact in contention is 23 material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the 24 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 25 non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). 26 In the endeavor to establish the existence of a factual dispute, the opposing party need not 27 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 28 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 1 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 2 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 3 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 4 omitted). 5 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 6 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 7 Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party’s 8 obligation to produce a factual predicate from which the inference may be drawn. See Richards 9 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th 10 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 11 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 12 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 13 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–87 (citations omitted). 14 ANALYSIS 15 A. Plaintiff’s APA and Mandamus Claims 16 “When a complaint seeks identical relief under the APA and the Mandamus Act, courts 17 routinely elect to only analyze the APA claims.” Salarian v. Blinken, No. 23-cv-01315-LL-BJC, 18 2024 WL 4008758, at *4 (S.D. Cal. Aug. 30, 2024) (citing Vaz v. Neal, 33 F.4th 1131, 1135 (9th 19 Cir. 2022)). Here, plaintiff seeks identical relief under the APA and the Mandamus Act. (Doc. 20 No. 1 at ¶¶ 28, 35.) The court therefore only addresses plaintiff’s APA claim. 21 Pursuant to the APA, a court “shall compel agency action unlawfully withheld or 22 unreasonably delayed” where an agency fails to take a discrete action it is required to take. 23 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). A plaintiff 24 asserting a claim of unreasonable delay under the APA must show that the agency (1) had a 25 nondiscretionary duty to act and (2) unreasonably delayed in acting on that duty. Norton, 542 26 U.S. at 63–65; 5 U.S.C. §§ 555(b), 701(a)(2). 27 ///// 28 ///// 1 1. Whether Plaintiff’s Claim Is Barred by Consular Non-Reviewability 2 The Ninth Circuit has “long recognized that ordinarily, a consular official’s decision to 3 deny a visa to a foreigner is not subject to judicial review.” Allen v. Milas, 896 F.3d 1094, 1104 4 (9th Cir. 2018). However, “the doctrine does not apply where plaintiffs seek a final decision on 5 their visa applications rather than judicial review of a consular decision.” Jamalinia v. Rubio, No. 6 2:24-cv-00981-JDP, 2025 WL 744861, at *4 (E.D. Cal. Mar. 7, 2025); see also Patel v. Reno, 134 7 F.3d 929, 932 (9th Cir. 1997) (“[W]hen the suit challenges the authority of the consul to take or 8 fail to take an action as opposed to a decision taken within the consul’s discretion, jurisdiction 9 exists. . . . Therefore, jurisdiction exists to consider whether the consulate has the authority to 10 suspend the visa applications.”). Here, plaintiff purports to seek a final decision on his sister’s 11 visa application such that consular non-reviewability does not apply. (Doc. No. 1 at ¶ 28.) 12 In their pending motion, defendants highlight that following the consular interview, 13 plaintiff’s sister received a refusal based on § 1201(g). (Doc. No. 6 at 9.) Defendants argue that 14 such a refusal “reflects that a consular officer determined that the visa applicant failed to meet 15 their burden to establish eligibility for the visa sought, and while additional discretionary 16 investigation may prompt the consular official to reopen that decision, ‘the action of [the consular 17 officer] under such authority is final and conclusive.’” (Id.) (quoting U.S. ex rel. Knauff v. 18 Shaughnessy, 338 U.S. 537, 543 (1950)). In his opposition, plaintiff argues that such a “refusal” 19 does not qualify as a final consular decision. (Doc. No. 9 at 11.) 20 “[T]he mere fact that the State Department has chosen to characterize an action as a 21 ‘refusal’ does not necessarily make it a final decision; rather, ‘the focus should be on what is 22 actually happening[.]’” Alam v. Blinken, No. 2:24-cv-01103-DJC-CKD, 2024 WL 4804557, at 23 *4 (E.D. Cal. Nov. 15, 2024) (quoting Vulupala v. Barr, 438 F. Supp. 3d 93, 98 (D.D.C. 2020)); 24 see also Patel, 134 F.3d at 932 (finding that a letter denying a visa application was “not a final 25 decision”). As such, “the prevailing position . . . is that a refusal for administrative processing is 26 not a final decision and therefore does not discharge the agency’s obligation to adjudicate visa 27 applications.” Alam, 2024 WL 4804557, at *5 (collecting cases). 28 ///// 1 Here, it is undisputed that the consular officer refused plaintiff’s visa application “under 2 INA § 221(g)[,]” determining that “additional security screening was required.” (DUF ¶ 7.) 3 Then, “consular staff at the U.S. Embassy in Ankara sent a list of questions consistent with Form 4 DS-5535, Supplemental Questions for Visa Applicants, to” plaintiff’s sister. (DUF ¶ 8.) In the 5 language of the complaint, plaintiff’s sister’s “case was placed in administrative processing 6 pursuant to [INA] § 221(g).” (Doc. No. 1 at 20.) Therefore, applying either the summary 7 judgment or motion to dismiss standard, defendants’ action is not a final decision because it 8 constitutes a refusal under INA § 221(g) for administrative processing. Patel, 134 F.3d at 932 9 (finding that a letter denying the plaintiff’s visa under INA § 221(g) “is not a final decision”); 10 Alam, 2024 WL 4804557, at *5 (“For these reasons, many courts have concluded that an 11 unreasonable delay claim may proceed where, as here, the plaintiff seeks to challenge the State 12 Department’s failure to take timely action on a visa application following the submission of a 13 Form DS-5535 after the consular interview.”) (collecting cases). Therefore, the consular non- 14 reviewability doctrine does not apply to bar plaintiff’s claim. 15 2. Whether Defendants have a Non-Discretionary Duty to Adjudicate Plaintiff’s 16 Sister’s Visa Application 17 APA § “706(1) ‘grants judicial review if a federal agency has a “ministerial or non- 18 discretionary” duty amounting to a “specific, unequivocal command.”’” Alam, 2024 WL 19 4804557, at *4 (quoting Anglers Conservation Network v. Pritzker, 809 F.3d 664, 670 (D.C. Cir. 20 2016)). 21 In their pending motion, defendants argue that they owe no non-discretionary duty to 22 plaintiff because plaintiff’s sister’s application was refused following her consular interview, and 23 there is no non-discretionary duty to reconsider whether that refusal may be overcome within a 24 specified timeframe. (Doc. No. 6 at 11.) In his opposition, plaintiff argues that pursuant to 8 25 U.S.C. § 1202(b), there exists a nondiscretionary duty to adjudicate all visas through conclusion, 26 and the APA overlays a requirement that all adjudications must be completed within a reasonable 27 time and not be unreasonably or illegally withheld. (Doc. No. 9 at 15.) 28 ///// 1 Under the INA, “[a]ll immigrant visa applications shall be reviewed and adjudicated by a 2 consular officer.” 8 U.S.C. § 1202(b). “Courts are split on whether there is a mandatory duty to 3 review and adjudicate immigrant visa applications under § 1202(b).” Iqbal v. Blinken, No. 2:23- 4 cv-01299-KJM-KJN, 2023 WL 7418353, at *6 (E.D. Cal. Nov. 9, 2023). The undersigned is 5 persuaded that the statute’s use of “‘shall’ indicates a mandatory nondiscretionary duty to review 6 and adjudicate immigrant visa applications.” Id. The court therefore finds “section 1202(b) 7 imposes a clear duty” on defendants to adjudicate plaintiff’s sister’s immigrant visa application. 8 Alam, 2024 WL 4804557, at *4; see also Kassem v. Blinken, No. 1:21-cv-01400-DAD-HBK, 9 2021 WL 4356052, at *5 (E.D. Cal. Sept. 24, 2021) (same). 10 Because defendants have a clear, non-discretionary duty to adjudicate plaintiff’s sister’s 11 immigrant visa application, the APA imposes a requirement on defendants “to conclude” this 12 adjudication “within a reasonable time.” 5 U.S.C. § 555(b). Further, despite defendants’ efforts 13 to parse the relevant duty as a duty to “reconsider[,]” as discussed above, defendants have not yet 14 issued a final decision regarding plaintiff’s sister’s visa. (Doc. No. 6 at 11.) “Thus, defendants 15 have a nondiscretionary duty to adjudicate plaintiff[’s] immigrant visa petitions within a 16 reasonable time.” Iqbal, 2023 WL 7418353, at *7. 17 3. Whether TRAC Review is Premature 18 In evaluating the reasonableness of agency delay, a court considers six factors: 19 (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 20 indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 21 this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and 22 welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or 23 competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the 24 court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 25 26 In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138–39 (9th Cir. 2020) (quoting Telecomms. 27 Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79-80 (D.C. Cir. 1984)). “The most 28 ///// 1 important is the first factor, the ‘rule of reason,’ though it, like the others, is not itself 2 determinative.” In re A Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017) (citation omitted). 3 In his opposition, plaintiff argues that review of these factors is premature “because the 4 record is not nearly complete in this matter[.]” (Doc. No. 9 at 18.) Plaintiff explains that 5 discovery “might bring to light relevant information on gauging reasonableness, including how 6 many visa requests are pending for those in substantially similar hardship circumstances . . . and 7 how long similar visa requests take to process, all of which could aid the Court in determining 8 whether the delay, in this case, is, in fact, reasonable or unreasonable[.]” (Id.) In their reply, 9 defendants acknowledge a split of authority regarding whether to apply the TRAC factors at this 10 stage in the litigation, but argue that this court should follow the majority of courts that have 11 evaluated unreasonable delay claims at the motion to dismiss stage of litigation. (Doc. No. 10 at 12 8.) 13 a. Motion to Dismiss 14 “Because of the fact-intensive nature of the reasonableness determination, courts disagree 15 on whether the TRAC factors should be analyzed to resolve a motion to dismiss.” Iqbal, 2023 16 WL 7418353, at *7 (citation omitted). The Ninth Circuit has yet to address this question. See 17 Vaz, 33 F.4th at 1138 (“Vaz does argue that unreasonable delay is a factual question that should 18 not be decided under motion to dismiss standards. But his argument is irrelevant because, as 19 discussed above, we treat the district court’s dismissal as a grant of summary judgment and apply 20 summary judgment standards.”). “Resolution of a claim of unreasonable delay is ordinarily a 21 complicated and nuanced task requiring consideration of the particular facts and circumstances 22 before the court.” Gonzalez v. U.S. Dep’t of Homeland Sec., 500 F. Supp. 3d 1115, 1130 (E.D. 23 Cal. 2020) (quoting Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 24 (D.C. Cir. 2003)). Moreover, it has been recognized that “[t]here is nothing unusual about 25 abstaining from undertaking such a fact-intensive inquiry at the pleading stage.” 26 Sheikhalizadehjahed v. Gaudiosi, No. 2:24-cv-01136 SCR, 2024 WL 4505648, at *8 (E.D. Cal. 27 Oct. 16, 2024) (collecting cases); see also Austin v. Univ. of Or., 925 F.3d 1133, 1136–37 (9th 28 Cir. 2019) (“[T]he Court has never indicated that the requirements for establishing a prima facie 1 case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in 2 order to survive a motion to dismiss.”) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 3 (2002)). 4 In the instant case, plaintiff currently has access to information regarding the length of 5 delay of the agency action (a component of TRAC factor one) and the extent to which human 6 health and welfare are at stake (TRAC factor three). See In re Nat. Res. Def. Council, Inc., 956 7 F.3d at 1138–39; Alam, 2024 WL 4804557, at *7 (TRAC factor one, the rule of reason, is meant 8 to encompass “both the length of the delay and the reasons for the delay.”). However, at this 9 early stage of the litigation, plaintiff does not have access to the inner workings of the consular 10 visa process. Plaintiff therefore has not alleged the reason for the delay (a component of TRAC 11 factor one), or relatedly, whether requiring prompt adjudication of plaintiff’s sister’s application 12 would disadvantage other applicants by rearranging priorities in a zero-sum game (TRAC factor 13 four). See In re Nat. Res. Def. Council, Inc., 956 F.3d at 1138–39; Alam, 2024 WL 4804557, at 14 *7. In some cases, for instance where the visa applicant is located within the United States 15 experiencing minimal hardship from the delay and the length of delay is comparatively short, it 16 may be appropriate for the court to apply the TRAC factors in addressing a motion to dismiss to 17 find that the delay is reasonable, even in the absence of full information regarding the other TRAC 18 factors. 19 But in the instant case, human health and welfare are at stake while plaintiff’s sister 20 allegedly waits for adjudication of her visa application outside the United States in an 21 environment with “political unrest” and “safety challenges[.]” (Doc. No. 1 at ¶ 7.) Furthermore, 22 the length of delay, measured from the last agency action to the date this order issues, is alleged 23 to be one year and seven months (19 months). See In re A Cmty. Voice, 878 F.3d at 787 24 (calculating the agency’s delay as the time between the last agency action and the court’s order); 25 Vaz, 33 F.4th at 1138 (same); Alam, 2024 WL 4804557, at *7 (same); Sheikhalizadehjahed, 2024 26 WL 4505648, at *9 (“At the hearing, the parties agreed that the proper calculation of the delay is 27 from the date of the consular interview to the date of the court’s decision on the delay. This 28 appears to be an accepted approach in post-interview delay cases.”). This length of delay may be 1 unreasonable. Sheikhalizadehjahed, 2024 WL 4505648, at *9 (finding a delay of 20 months at 2 the time of the order “without the benefit of further justification or explanation as to why 3 gathering additional information is taking so long, is enough to plausibly allege an unreasonable 4 delay”); see also Vaz, 33 F.4th at 1138 (“Repeatedly, courts in this and other circuits have 5 concluded that a reasonable time for agency action is typically counted in weeks or months, not 6 years.”) (quoting In re Nat. Res. Def. Council, Inc., 956 F.3d at 1139); Iqbal, 2023 WL 7418353, 7 at *3, 8 (finding that the plaintiffs had plausibly alleged an unreasonable delay where they filed 8 the action “twelve to fifteen months after the last government action” and the court’s order issued 9 five months later). Whether this 19 month delay in this case is unreasonable would depend, in 10 part, on the “justification or explanation as to why gathering additional information is taking so 11 long[.]” Sheikhalizadehjahed, 2024 WL 4505648, at *9. Therefore, in this case, application of 12 the TRAC factors would require the court to evaluate the reason for the delay and, at this early 13 stage in the litigation, it can only do so by looking beyond the face of the complaint to 14 assumptions and generalities rather than based upon a fact-specific inquiry. See, e.g., Alam, 2024 15 WL 4804557, at *7 (“Decisions regarding the admission of foreign nationals frequently implicate 16 relations with foreign powers, or involve classifications defined in the light of changing political 17 and economic circumstances.”) (citation omitted); see also Gonzalez, 500 F. Supp. 3d at 1130 18 (“Adopting defendant’s argument would require the court to look beyond the face of plaintiffs’ 19 complaint and, without the benefit of the administrative record, evaluate facts concerning USCIS’ 20 general practices, whether those practices were followed in this case, and the number of U visa 21 petitions filed over the past several years.”). Given that the TRAC factors are meant to be fact- 22 intensive, the court finds that application of the TRAC factors in this case at this stage of the 23 litigation is premature, and “the reasonableness inquiry is best resolved ultimately on a full 24 factual record.” Iqbal, 2023 WL 7418353, at *8; see also Salarian, 2024 WL 4008758, at *4 25 (collecting cases); Sheikhalizadehjahed, 2024 WL 4505648, at *8 (same). 26 Still, the court must determine whether plaintiff’s complaint “contain[s] sufficient factual 27 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Hinds Invs., L.P. 28 v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). For the reasons explained above, including the 1 extent to which human health and welfare are at stake and the length of the delay, plaintiff has 2 plausibly alleged unreasonable delay. See Sheikhalizadehjahed, 2024 WL 4505648, at *9 3 (finding a delay of 20 months at the time of the order “without the benefit of further justification 4 or explanation as to why gathering additional information is taking so long, is enough to plausibly 5 allege an unreasonable delay”); Vaz, 33 F.4th at 1138 (“Repeatedly, courts in this and other 6 circuits have concluded that a reasonable time for agency action is typically counted in weeks or 7 months, not years.”) (quoting In re Nat. Res. Def. Council, Inc., 956 F.3d at 1139); Iqbal, 2023 8 WL 7418353, at *3, 8 (finding that the plaintiffs had plausibly alleged an unreasonable delay 9 where they filed the action “twelve to fifteen months after the last government action” and the 10 court’s order issued five months later).2 11 b. Motion for Summary Judgment 12 In the alternative, defendants bring a motion for summary judgment in their favor. 13 “Federal Rule of Civil Procedure 56(d) provides a mechanism by which the nonmoving party 14 may request additional time to take discovery necessary to oppose a motion for summary 15 judgment.” Kapoor v. Blinken, No. 21-cv-01961-BLF, 2022 WL 181217, at *5 (N.D. Cal. Jan. 16 20, 2022). Where “a summary judgment motion is filed so early in the litigation, before a party 17 has had any realistic opportunity to pursue discovery relating to its theory of the case, district 18 courts should grant any Rule 56(f) motion fairly freely.” Burlington N. Santa Fe R.R. Co. v. 19 Assiniboine & Sioux Tribes of Fort Peck Rsrv., 323 F.3d 767, 773 (9th Cir. 2003); see also Aliff v. 20 2 This court acknowledges that other district courts have found longer delays to be reasonable. 21 See Alam, 2024 WL 4804557, at *7 (collecting cases). However, the court finds “most of those cases inapposite where they dealt with pre-consular interview delays, delays in student- or 22 employment-based visa applications (rather than family-based applications), or delays justified to 23 some extent by the COVID pandemic.” Sheikhalizadehjahed, 2024 WL 4505648, at *9. As for cases that are analogous to those in this case—family-based post-consular-interview delays—this 24 court, like the court in Sheikhalizadehjahed, “has reservations in following several of them because they rely on other cases that are inapposite to conclude that the given post-interview 25 delay is not unreasonable.” Id.; see also Alam, 2024 WL 4804557, at *7 (“The Court notes that there is a dearth of circuit law addressing what constitutes unreasonable delay in the immigration 26 context, particularly in the family-based immigrant visa context. In addition, many district court 27 cases which have found delays of less than four years reasonable involve visa petitions where plaintiffs were in the United States and not facing family separation, which is clearly 28 distinguishable from the context here.”). 1 Vervent Inc., No. 20-cv-00697-DMS-AHG, 2022 WL 3588322, at *4 (S.D. Cal. Aug. 22, 2022) 2 (“Motions for summary judgment are frequently considered premature and denied when 3 discovery has not been completed[.]”). 4 Here, plaintiff has not “show[n] by affidavit or declaration that, for specified reasons, it 5 cannot present facts essential to justify its opposition” as required by Rule 56(d). Fed. R. Civ. P. 6 56(d). However, “substantially complying with the requirements of the rule by showing how 7 particular discovery would defeat summary judgment and why specific facts are not yet available 8 is enough for a party to successfully demonstrate that summary judgment is precluded.” Aliff, 9 2022 WL 3588322, at *4; see also Burlington N. Santa Fe R. Co., 323 F.3d at 774 (Where “no 10 discovery whatsoever has taken place, the party making a Rule 56(f) motion cannot be expected 11 to frame its motion with great specificity as to the kind of discovery likely to turn up useful 12 information, as the ground for such specificity has not yet been laid.”). Further, the court may 13 apply Rule 56(d) “sua sponte.” Encinas v. Univ. of Wash., No. 2:20-cv-01679-TL, 2022 WL 14 4598083, at *8 (W.D. Wash. Sept. 30, 2022). 15 The court’s concerns regarding TRAC review discussed above persist in the context of 16 summary judgment. The court does not have evidence necessary to determine, for instance, the 17 reason for the delay because defendants’ undisputed facts state only that “additional security 18 screening is ongoing[.]” (DUF ¶ 9.) Furthermore, as stated above, plaintiff does not currently 19 have access to information or evidence regarding the reason for the delay. For this reason, the 20 court is persuaded by plaintiff’s argument that further discovery is necessary here to allow 21 plaintiff access to evidence regarding, for instance, how many comparable visa applications are 22 pending and how long similar visa requests take to process. (Doc. No. 9 at 18.) This evidence is 23 relevant to evaluating such TRAC factors as whether the length of the delay complies with the 24 rule of reason and whether plaintiff’s success in this suit would merely advantage plaintiff in a 25 “zero-sum game” for consular resources. (Doc. No. 6 at 17.) To allow time for further discovery 26 to clarify the fact-intensive TRAC factors, the court will deny defendants’ motion for summary 27 judgment without prejudice to it being refiled and/or supplemented at a later date. 28 Sheikhalizadehjahed, 2024 WL 4505648, at *11 (denying without prejudice the defendants’ 1 motion for summary judgment as premature where the plaintiff alleged the defendants 2 unreasonably delayed in reviewing and adjudicating her father’s visa application). 3 B. Plaintiff’s Fifth Amendment Due Process Claim 4 In their motion, defendants argue that a recent Supreme Court case, Department of State v. 5 Muñoz, 602 U.S. 899 (2024), “firmly foreclosed Plaintiff’s due process argument.” (Doc. No. 6 6 at 23.) According to defendants, in Muñoz the Supreme Court held that “a citizen does not have a 7 fundamental liberty interest in [their] noncitizen spouse being admitted to the country.” Muñoz, 8 602 U.S. at 909. 9 In his opposition, plaintiff argues that Muñoz “presented a narrow constitutional issue 10 where the Plaintiff, in that case, believed her constitutional rights were violated by the State 11 Department for failure to provide a sufficient reason as to why her husband was deemed 12 inadmissible.” (Doc. No. 9 at 25–26.) By contrast, “Plaintiff Zargarian merely seeks final 13 adjudication on his sister’s visa application[.]” (Id. at 26.) Furthermore, plaintiff argues, the right 14 to family relationships is fundamental. (Id. at 26–27.) 15 The court concludes that the liberty interest plaintiff identifies is foreclosed by the 16 Supreme Court’s decision in Muñoz, which held that “Congress can use its authority over 17 immigration to prioritize the unity of the immigrant family. . . . [b]ut the Constitution does not 18 require this result[.]” 602 U.S. at 916. Further, the court finds that plaintiff’s attempts to 19 distinguish Muñoz are unavailing. Although Muñoz involved refusal of a visa, rather than a visa 20 application processing delay, district courts in the Ninth Circuit have found “the holding is not 21 limited to refusals as evidenced by the Supreme Court’s remark that a ‘claim to a procedural due 22 process right in someone else’s legal proceeding would have unsettling collateral consequences.’” 23 Durham v. Blinken, No. 24-cv-02868-PSG-MRW, 2024 WL 3811146, at *6 (C.D. Cal. Aug. 8, 24 2024) (quoting Muñoz, 602 U.S. at 916); see also Alam, 2024 WL 4804557, at *10 (finding the 25 plaintiff’s due process claim premised on the defendants’ delay in processing his spouse’s visa 26 was foreclosed by Muñoz). District courts have also found the reasoning in Muñoz extends 27 beyond spousal relationships to other immediate family relationships, comparable to the sibling 28 relationship involved here. See Sheikhalizadehjahed, 2024 WL 4505648, at *1 (finding the 1 plaintiff’s due process claim premised on the defendants’ delay in reviewing her father’s visa 2 application was foreclosed by Muñoz). As such, plaintiff’s due process claim premised on 3 defendants’ delay in processing his sister’s visa application is foreclosed by the Supreme Court’s 4 decision in Muñoz and will be dismissed. 5 C. Leave to Amend 6 Leave to amend should be granted “freely” when justice so requires. Fed. R. Civ. 7 P. 15(a). The Ninth Circuit maintains a policy of “extreme liberality generally in favoring 8 amendments to pleadings.” Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406, 406 (9th Cir. 1960). 9 Reasons “such as undue delay, bad faith or dilatory motive . . . repeated failure to cure 10 deficiencies . . . undue prejudice to the opposing party . . . [or] futility” may support denial of 11 leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). A district court “should grant leave 12 to amend even if no request to amend the pleading was made, unless it determines that the 13 pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, 14 Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). 15 Here, plaintiff has not requested leave to amend his complaint. (Doc. No. 9.) More 16 importantly, the undersigned concludes that amendment would be futile because the deficiency 17 the court identifies with respect to plaintiff’s due process claim cannot be cured by the allegation 18 of additional facts. Cook, 911 F.2d at 247; Andalib v. United States, No. 8:23-cv-01110-FWS- 19 KES, 2024 WL 685945, at *8 (C.D. Cal. Feb. 9, 2024) (“The court DENIES leave to amend the 20 Complaint’s Fifth Amendment claim because amendment would be futile given this claim relies 21 on an asserted due process interest foreclosed by binding precedent.”). Accordingly, plaintiff will 22 not be granted leave to amend. 23 CONCLUSION 24 For the reasons explained above, 25 1. Defendants’ motion to dismiss (Doc. No. 6) is GRANTED IN PART AND 26 DENIED IN PART as follows: 27 a. Defendants’ motion to dismiss plaintiff’s APA claim is denied; 28 b. Defendants’ motion to dismiss plaintiff’s Mandamus Act claim is denied; 1 C. Defendants’ motion to dismiss plaintiff's due process claim is granted 2 without leave to amend; 3 2. Defendants’ motion for summary judgment in their favor (Doc. No. 6) is DENIED 4 without prejudice to refiling and/or supplementation; and 5 3. The court sets an Initial Scheduling Conference for July 14, 2025 at 1:30 PM 6 before the undersigned. The parties shall file a joint scheduling report no later 7 than fourteen (14) days before this date. 8 IT IS SO ORDERED. | Dated: _ April 30, 2025 Dae A. 2, sel 10 DALE A. DROZD UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17