Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 Case No.: 25cv1322 DMS (DEB) MUDHAR IBRAHIM KHALID 13 ALDURRA, ORDER GRANTING IN PART AND 14 Plaintiff, DENYING IN PART DEFENDANTS’ v. MOTION TO DISMISS 15 PLAINTIFF’S FIRST AMENDED UNITED STATES DEPARTMENT OF 16 COMPLAINT STATE; U.S. EMBASSY IN AMMAN, 17 JORDAN; MARCO RUBIO, United States Secretary of State; ROHIT NEPAL, 18 Charge d’Affaires at the U.S. Embassy in 19 Amman, Jordan, 20 Defendants. 21 22 23 Plaintiff Mudar Ibrahim Khalid Aldurra brings suit against Defendants to compel a 24 final decision on an immigrant visa application for his mother Lubna Mohammed Abdo 25 Al-Qayisi (“Ms. “Al-Qayisi”). Ms. Al-Qayisi’s application has been suspended in 26 “administrative processing” since September 2023. Plaintiff alleges that Defendants have 27 unreasonably delayed and unlawfully withheld a final determination on his mother’s 28 application, and seeks relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 1 555(b), 706(1) and the Due Process Clause of the Fifth Amendment to the United States 2 Constitution.1 3 Defendants previously filed a motion to dismiss the Complaint, which the Court 4 denied as to the APA claim and granted with leave to amend as to the due process claim. 5 Defendants now move to dismiss Plaintiff’s First Amended Complaint (“FAC”) pursuant 6 to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (“Mot.”; ECF No. 12.) 7 Defendants acknowledge the “Court has already ruled on this [APA] claim[,] (Id. at 6), but 8 nonetheless re-argue that Plaintiff fails to allege (1) a clear, non-discretionary duty that 9 Defendants have failed to carry out, and (2) that Defendants have unreasonably delayed 10 processing Ms. Al-Qayisi’s application. Defendants also argue Plaintiff fails to state a due 11 process claim. Plaintiff filed an opposition to the motion, (“Opp’n”; ECF No. 13), and 12 Defendants filed a reply. (“Reply Br.”; ECF. No. 14.) For the reasons discussed below, 13 the motion is denied as to the APA claim and granted without leave to amend the due 14 process claim. 15 I. 16 BACKGROUND2 17 Plaintiff is a United States citizen who resides in San Diego, California. On August 18 14, 2021, Plaintiff filed a visa petition with United States Customs and Immigration 19 20 21 1 Plaintiff seeks a writ of mandamus under 28 U.S.C. § 1361 but does not specifically allege a Mandamus Act claim. Because mandamus relief requires showing a “clear duty to act,” Kildare v. Saenz, 325 F.3d 22 1078, 1084 (9th Cir. 2003), it is jurisdictional and implicates Rule 12(b)(1). Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). In addition, a request for mandamus relief essentially mirrors the 23 “relief [sought] under § 706 of the APA.” See Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997); Akbar v. Blinken, 23-cv-1054-LL (BLM), 2023 WL 8722119, at *3 (S.D. Cal. Dec. 18, 2023) 24 (stating where a mandamus claim mirrors an APA claim “courts routinely elect to analyze [the] APA 25 claim only.”) Thus, while Plaintiff has not alleged a mandamus claim, he will be entitled to a writ of mandamus if he prevails on his APA claim. 26 2 The facts set forth herein derive from Plaintiff’s FAC, (ECF No. 11), as well as Plaintiff’s affidavit in support of his Opposition. (ECF No. 13-1.) And Defendants filed a declaration from Rachel Ann Peterson 27 on behalf of Defendant Department of State regarding Ms. Al-Qayisi’s visa application and status in administrative processing. (ECF No. 12-1.) No objections were filed, so the evidence is received and 28 1 Services (“USCIS”) for his mother who is a citizen of Iraq living in Jordan. USCIS 2 approved the visa petition on September 20, 2022, and the case was then sent to the 3 National Visa Center (“NVC”) for processing. Plaintiff alleges that NVC completed its 4 processing and forwarded the case to the U.S. Embassy in Amman, Jordan, for an 5 interview. (Id.) Ms. Al-Qayisi’s interview took place on September 24, 2023, and on the 6 same date, the consular officer “refused” Ms. Al-Qayisi’s application under INA § 221(g), 7 8 U.S.C. § 1201”g) (commonly referred to as a “221(g) refusal”). The consular officer 8 determined that Ms. Al-Qayisi “failed to demonstrate eligibility for the visa sought and that 9 additional security screening was required.” Two days after the interview, on September 10 26, 2023, Ms. Al-Qayisi submitted answers to the questions posed by the U.S. Embassy on 11 Form DS-5535, Supplemental Questions for Visa Applicants. Since that time and despite 12 repeated attempts to obtain a decision, the petition has remained in administrative 13 processing pending “ongoing” security screening without a final decision. (Patterson Decl. 14 ¶11.) 15 In contrast to his mother’s situation, Plaintiff asserts his father’s visa application, 16 which was filed on the same day as his mother’s application, was efficiently processed. 17 Like Ms. Al-Qayisi, Plaintiff’s father’s application initially was refused and put into 18 administrative processing for additional information. Plaintiff’s father submitted “a 19 prompt response” and “[n]ot long after, [his] father’s visa application was approved.” (Pl’s 20 Decl. ¶ 6.) His father is now a Lawful Permanent Resident in the United States. Plaintiff 21 alleges ongoing profound stress and anxiety to his family over the separation, (FAC ¶¶ 32- 22 33), and seeks prioritization of review so his mother—if her application is approved—can 23 reunite with Plaintiff, her husband, and her grandson. 24 II. 25 DISCUSSION 26 Defendants move to dismiss Plaintiff’s APA and due process claims for failure to 27 state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). 28 / / / 1 A. Legal Standard 2 Plaintiff bears the burden of establishing subject matter jurisdiction. Ass’n of Am. 3 Med. Coll. V. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). When considering a 4 factual attack in a motion to dismiss under Rule 12(b)(1), the court may review evidence 5 outside the pleadings to resolve factual disputes about the existence of jurisdiction without 6 converting the motion to one for summary judgment. Biotechs Research Corp. v. Heckler, 7 710 F.2d 1375, 1379 (9th Cir. 1983). As noted, Plaintiff does not specifically allege a 8 mandamus claim, but the parties have nonetheless submitted evidence outside the 9 pleadings for the Court’s consideration. 10 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 11 Procedure tests the legal sufficiency of the claims asserted in the complaint. See Fed. R. 12 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). In deciding a motion 13 to dismiss under Rule 12(b)(6), all material factual allegations of the complaint are 14 accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v. 15 Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A motion to dismiss should be 16 granted if a plaintiff’s complaint fails to contain “enough facts to state a claim to relief that 17 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 18 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 19 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 20 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 21 Generally, district courts may not consider material outside the pleadings when 22 assessing the sufficiency of a complaint under Rule 12(b)(6). Lee v. City of Los Angeles, 23 250 F.3d 668, 688 (9th Cir. 2001). Typically, if a party submits evidence from outside the 24 pleadings in support of a motion to dismiss under Rule 12(b)(6), and a court relies on that 25 evidence, the motion must be converted into a motion for summary judgment. Anderson 26 v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, “[a] court may take judicial notice 27 of matters of public record without converting a motion to dismiss into a motion for 28 summary judgment.’” Lee, 250 F.3d at 689. 1 B. APA Claim 2 Plaintiff’s first claim seeks to compel agency action under the APA, which provides 3 that a “reviewing court shall … compel agency action unlawfully withheld or unreasonably 4 delayed.” 5 U.S.C. § 706(1). See also 5 U.S.C. § 555(b) (requiring government agencies 5 to conclude matters presented to them “[w]ith due regard for the convenience and necessity 6 of the parties or their representatives and within a reasonable time[.]”) An APA claim for 7 unlawfully withholding agency action “can proceed only where a plaintiff asserts that an 8 agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah 9 Wilderness All., 542 U.S. 55, 64 (2004) (original emphasis). Thus, to succeed on his claim 10 for agency action unlawfully withheld, Plaintiff must plausibly allege Defendants “failed 11 to carry out a discrete, clear, and non-discretionary duty to act.” See Arapov v. Rubio, 24- 12 cv-3013-MJS, 2025 WL 2732722, at *4 (D.D.C. Sept. 25, 2025). 13 Defendants respond there is no hard timeline for adjudicating visa applications, their 14 221(g) refusal was a final decision and no further action is required, and any delay has not 15 been unreasonable. Thus, Defendants argue that review of a visa application in 16 “discretionary administrative processing” following a 221(g) refusal may proceed on 17 Defendants’ schedule without any legal obligation to conclude that process once it is 18 started. 19 This argument has been considered and rejected by the Court in this case as well as 20 others that have raised the same issue. See Mirshekari v. Rubio, et al., No. 25-cv-1998 21 DMS (DDL) (S.D. Cal. May 15, 2026) (stating most courts that have considered the issue 22 “reason that issuing a final decision on a visa application is a discrete agency action that is 23 required by law, and that a 221(g) refusal and subsequent placement of an application into 24 administrative processing necessarily involves more processing and final agency action 25 based on that review.”) (citing Arapov, 2025 WL 2732722, at *4 (collecting cases and 26 stating “those courts have rejected the notion that a 221(g) refusal—and the concomitant 27 placement of an application into ‘administrative processing’ limbo—suffices to complete 28 that duty.”)) 1 As in Mirshekari, the essence of Plaintiff’s allegations is that Defendants’ 221(g) 2 refusal is an interim determination subject to “ongoing” security review,3 and at the 3 conclusion of that review, Defendants must issue, refuse, or discontinue granting the visa, 4 which Defendants have not done. The Court agrees with Plaintiff. Accordingly, Plaintiff 5 has plausibly alleged “agency action unlawfully withheld” as he has identified a legally 6 required, discrete act that Defendants have failed to perform—that is, to make a final 7 determination on Ms. Al-Qayisi’s application following completion of the “security 8 screening” in administrative processing. 9 This leaves Defendants’ renewed argument that they have not unreasonably delayed 10 processing Ms. Al-Qayisi’s application. To state an unreasonable delay claim under the 11 APA, a plaintiff must allege that (1) defendants failed to take an action that they are 12 required by law to take, and (2) defendants’ delay in taking that action was unreasonable. 13 Raouf v. U.S. Department of State, 702 F.Supp.3d 19, 31 (D.N.H. 2023) (citations omitted). 14 As discussed above, Plaintiff has sufficiently alleged Defendants failed to take an action 15 that they are required by law to take. Plaintiff also alleges unreasonable delay. As of this 16 ruling, approximately 32 months have elapsed since Ms. Al-Qayisi’s consular interview 17 and 221(g) refusal; yet, her application remains pending in administrative processing with 18 no final decision. 19 Defendants argue Plaintiff filed suit 20 months after his mother was interviewed and 20 her visa application was refused, and passage of that period of time with no final 21 adjudication—even when considered with the time that has elapsed since this ruling (32 22 months)—is not unreasonable. (Mot. at 8) (citing Siddiqui v. Blinken, 646 F.Supp.3d 69, 23 76 (D.D.C. 2022) (stating delay of three years since interview with consular officer “is in 24 25 26 3 (See Peterson Decl. at ¶ 11) (stating Ms. Al-Qayisi’s “security screening is ongoing[.]”) The Court also notes and takes judicial notice that Department of State data indicates that in 78.3% of immigrant visa 27 cases with 221(g) refusals, visas are ultimately issued following completion of administrative processing. See Release of Material Under Freedom of Information Act, Case No. F-2025-08930/FL-2025-00072 28 1 line with other decisions that have not found unreasonable delay”); Skalka v. Kelly, 246 2 F.Supp.3d 147, 153-54 (D.D.C. 2017) (noting two-year delay in processing immigrant visa 3 “does not typically require judicial intervention”).) Defendants reargue that courts 4 regularly apply the six “TRAC factors” set forth in Telecomms. Research and Action Ctr. 5 v. Federal Comms. Commission, 750 F.2d 70, 79-80 (D.C. Cir. 1984) (“TRAC”), to 6 determine whether agency action has been unreasonably delayed. These factors are: 7 (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 8 the speed with which it expects the agency to proceed in the enabling statute, 9 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 10 tolerable when human health and welfare are at stake [;] (4) the court should 11 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 12 nature and extent of the interests prejudiced by the delay[;] and (6) the court 13 need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” 14 15 Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997) (quoting TRAC, 750 16 F.2d at 80). 17 Plaintiff again disputes whether the Court should consider these factors on a motion 18 to dismiss rather than on a merits-based motion following discovery. The Court, again, 19 agrees with Plaintiff. See Aldurra v. United States Department of State, et al., 25-cv-1322- 20 DMS (DEB), 2026 WL 63471, at 2-3 (S.D. Cal. Jan. 8, 2026) (collecting cases and holding 21 “an analysis of the TRAC factors involves factually intensive questions, which are generally 22 inappropriate for resolution on a motion to dismiss.”) 23 On the present record, the Court declines Defendants’ invitation to determine that 24 the alleged delay (approaching three years) is not unreasonable. Accepting Plaintiff’s 25 allegations as true at this stage of the proceedings, as well as the undisputed evidence before 26 the Court (submitted under Rule 12(b)(1)), Plaintiff has alleged Ms. Al-Qayisi has unfairly 27 waited for a final decision on a “straightforward visa application,” while her husband’s 28 application was efficiently handled and quickly approved in administrative processing, so 1 he could reunite with family and pursue (and receive) lawful permanent resident status in 2 the United States. Plaintiff asserts the family has suffered “tremendous hardship” and 3 “emotional burden” from the physical separation, which has had a “profound impact on 4 Plaintiff and his father, as well as Plaintiff’s U.S. citizen son.” (Pl’s Decl. ¶ 10-11.) These 5 allegations plausibly allege unreasonable delay under the TRAC factors and survive a 6 motion to dismiss. 7 Defendants raise potentially legitimate arguments that they have not unreasonably 8 delayed processing Ms. Al-Qayisi’s application. They raise concerns regarding the need 9 for additional security screening which is “an individualized process” dependent on 10 “resources available to the agency,” “interfere[ing] with the conduct of foreign affairs by 11 ordering the U.S. Embassy to re-order its priorities[,]” disrupting other applicants by 12 “putting Plaintiff at the head of the queue[,]” and so on. (Mot. at 10-13.) However, these 13 arguments are conclusory and lack evidentiary support. Targeted discovery would shed 14 light on the validity of these arguments and whether under the TRAC factors Defendants 15 have unreasonably delayed in light of the particular circumstances confronting Ms. Al- 16 Qayisi and Defendants. For example, any complications regarding Ms. Al-Qayisi’s 17 security screening could be identified, so too could the lack of resources, if any, vis-à-vis 18 current demands on the agency, and illuminating the queue ahead of Ms. Al-Qayisi and 19 impact on other applicants of re-prioritizing would be helpful. These and other TRAC 20 factors cannot be meaningfully addressed on the present record, and thus, the Court 21 declines to address them at this stage of the proceedings. 22 C. Due Process Claim 23 Plaintiff’s only other claim is for violation of his right to procedural due process. He 24 alleges that as a U.S. citizen he has a protected liberty interest in his mother’s visa that is 25 violated by the ongoing administrative processing. (FAC ¶¶ 25-28, 33.) To state a 26 procedural due process claim, Plaintiff must allege facts supporting “(1) a deprivation of a 27 constitutionally protected liberty or property interest, and (2) a denial of adequate 28 procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 1 971, 982 (9th Cir. 1998). Defendants correctly argue that Plaintiff has no protected liberty 2 interest in his mother being admitted to the United States. (Mot. at 13 (citing Dep’t of State 3 v. Munoz, 602 U.S. 899, 908-09 (2024) (stating “a citizen does not have a fundamental 4 liberty interest in his noncitizen spouse being admitted to the country”).) See also Pinnaka 5 v. United States, No. 24-CV-86, 2024 WL 4252776, at *6 (E.D. Wis. Sept. 20, 2024) 6 (stating Munoz is not limited to spousal relationships and finding a citizen’s independent 7 constitutional rights do not give the “citizen a procedural due process right” in “someone 8 else’s visa”); Nikpanah v. U.S. Dep’t of State, No. 2:24-cv-00404-NAD, 2025 WL 374931, 9 at *10 (N.D. Ala. Feb. 3, 2025) (under Munoz a child “has no liberty interest in her parents’ 10 admission to the country”); Nasir v. U.S. Dep’t of State, 749 F. Supp. 3d 938, 944 (N.D. 11 Ill. 2024) (similar); Chen v. Blinken, No. 23-cv-2279 (NGG), 2025 WL 606221, at *7 12 (E.D.N.Y. Feb. 25, 2025) (similar); Manshadi v. Allen, No. 24-cv-10118-ADB, 2025 WL 13 524173, at *6 (D. Mass. Feb. 18, 2025) (similar); Esghai v. United States Dep’t of State, 14 No. 24 CIV. 2993 (PAE), 2024 WL 4753799, at *8 (S.D.N.Y. Nov. 12, 2024) (similar); 15 Morassaei. United States Dep’t of State, No. SACV 24-823 PA (DFMX), 2024 WL 16 5047480, at *4 (D.C.D. Cal. Sept. 25, 2024) (similar); Durrani v. Bitter, No. 24-11313- 17 FDS, 2024 WL 4228927, at *7 (D. Mass. Sept. 18, 2024) (similar). The Court agrees with 18 and follows the reasoning of these cases. 19 Plaintiff disagrees but cites no case holding that a party such as Plaintiff has a 20 constitutionally protected liberty interest in the adjudication of a family member’s visa 21 application. Plaintiff cites, for example, Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th 22 Cir. 2008) (holding a U.S. citizen has a protected liberty interest in the adjudication of a 23 noncitizen spouse's visa application). However, Bustamante and subsequent Ninth Circuit 24 cases following that case, e.g., Muñoz v. U.S. Dep't of State, 50 F.4th 906, 915-16 (9th Cir. 25 2022), were reversed by the Supreme Court in Munoz, 602 U.S. at 909 (“The Ninth Circuit 26 is the only Court of Appeals to have embraced this asserted right—every other Circuit to 27 consider the issue has rejected it … [and] [t]oday, we resolve the open question … [and] 28 1 ||hold that a citizen does not have a fundamental liberty interest in her noncitizen spouse 2 || being admitted to the country.”). So it is here. 3 Plaintiff has failed to state a claim for violation of his procedural due process rights 4 ||as he has no protected liberty interest in the adjudication of his mother’s visa. Because 5 ||amendment would be futile, this claim is dismissed without leave to amend. 6 IV. 7 CONCLUSION 8 For the reasons set out above, Defendants’ motion to dismiss 1s granted in part and 9 || denied in part. Specifically, the Court denies the motion to dismiss Plaintiff's APA claim, 10 || but grants the motion to dismiss Plaintiff's due process claim with prejudice. Defendants 11 || will answer the FAC within 14 days of the filing of this Order. The parties will contact the 12 || Magistrate Judge within 14 days and schedule an ENE within 30 days of the filing of this 13 ||Order. The Magistrate Judge is invited to order targeted discovery and accelerate 14 || scheduling of potentially dispositive motions. 15 IT IS SO ORDERED. 16 || Dated: May 20, 2026 17 2 nnn Salo 8 Hon. Dana M. Sabraw United States District Judge 19 20 21 22 23 24 25 26 27 28