Oystacher v. Rubio

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

EVGENY OYSTACHER,

Plaintiff,

Civil Action No. 25-3276 (BAH)

Judge Beryl A. Howell

MARCO RUBIO, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Evgeny Oystacher, a citizen of Russia and Israel, seeks to compel the government

defendants to adjudicate his nonimmigrant visa application, which had been in administrative

proceedings for eight months at the time the complaint was filed. See Pet. for Writ of Mandamus

and Compl. for Declaratory & Injunctive Relief (“Compl.”) ¶¶ 6, 32, 53, 62, ECF No. 1. Asserting

claims that defendants—Secretary of State Marco Rubio, Brian Heath, the Consul General at the

U.S. Consulate in Frankfurt, and John Does #1-#10, who are Consular Officers responsible for

issuing visas at the U.S. Consulate in Frankfurt—have unreasonably delayed adjudication of his

visa application, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., the INA’s implementing

regulations, and agency policy, Compl. ¶ 62, plaintiff seeks an order or writ of mandamus directing

adjudication, id. at 15 (Prayer for Relief). Defendants now move to dismiss for lack of jurisdiction,

under Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for failure to state a claim

under Rule 12(b)(6). See Defs.’ Mot. to Dismiss and Mem. in Support (“Defs.’ Mem.”) at 1, ECF

No. 5. For the reasons explained below, defendants’ motion to dismiss is granted pursuant to

Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim of unreasonable delay under

Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1994).

I. BACKGROUND

The statutory and regulatory background underlying the claims is set out below, followed

by a summary of the factual and procedural history of this case.

A. Statutory and Regulatory Background

The INA allows for issuance of nonimmigrant worker visas. 8 U.S.C. § 1202(c). First,

employers may file an I-129 petition for an O-1 visa, reserved for aliens of extraordinary ability

or achievement. 8 C.F.R. § 214.2(o)(2). The applicant for such visa must then file an application

on either a Form DS-180 or, at the direction of a consular officer, Form DS-156, with the United

States Customs and Immigration Services (“USCIS”). 22 C.F.R. § 41.103(a)(1). After the

applicant appears for an in-person interview before a consular officer, id. § 41.102(a), and properly

completes and executes the visa application, the consular officer may then choose to issue, refuse,

or discontinue granting the visa, id. § 41.121(a).

An “applicant [can] overcome a refusal . . . in two instances: when additional evidence is

presented, or administrative processing is completed.” 9 FAM § 306.2-2(A)(a). With respect to

the former, “[w]hen the applicant has presented additional evidence to attempt to overcome a prior

refusal,” the consular office “re-open[s] and re-adjudicate[s] the case by overcoming the prior INA

221(g) refusal and determining whether the applicant is eligible for a visa.” Id. § 306.2-2(A)(a)(1).

In the latter circumstance, “[a] prior INA 221(g) refusal entered for administrative processing may

be overcome” if the consular officer “determine[s] administrative processing is completed” and

receives any additional “needed information.” Id. § 306.2-2(A)(a)(2)(a).

B. Factual Background

Plaintiff, a citizen of Russia and Israel, serves as the Chief Executive Officer (“CEO”) of

Industriax, a “U.S.-based” company. Compl. ¶¶ 6, 26, 35. 1 On an unspecified date, Industriax

LLC filed an O-1A petition for plaintiff “based on his extraordinary ability in business and

technology leadership,” which USCIS approved through December 13, 2027. Id. ¶¶ 1, 26. 2 On

January 10, 2025, plaintiff submitted a DS-160 application for an O-1 visa, and the following

week, attended his visa interview at the U.S. consulate in Frankfurt. Id. ¶¶ 27-28. During the

interview, the consular officer “told him that his visa application would require administrative

processing.” Id. ¶ 29. Plaintiff received a 221(g) refusal, which noted that the Consulate was

“unable to conclude processing of [his] non-immigrant visa application” and that “certain

administrative documents were needed to complete processing the application.” Id. ¶ 29; id., Ex.

A, Notice of Refusal, ECF No. 1-1. On January 17, 2025, the day after his interview, plaintiff

“fully responded to the consulate’s notice and provided all requested documents.” Compl. ¶ 30.

On January 31, 2025, the Consulate “issued an additional request for information, to which

Plaintiff responded the same day.” Id. ¶ 31. The Consular Electronic Application Center

(“CEAC”) case status for plaintiff indicates the application was last updated on January 31, 2025.

Id.; id., Ex. C, Refusal of Nonimmigrant Visa Application (“CEAC Status”), ECF No. 1-3.

Despite inquiring “multiple times with the embassy about the status of his visa

application,” plaintiff received “boilerplate responses informing him that his application is still

undergoing administrative processing that is a ‘normal part of the visa application process’ and

that the embassy ‘will see that the application is adjudicated as soon as the administrative

The complaint states that plaintiff applied for and interviewed at the U.S. consulate in Frankfurt, Compl. ¶ 28, but his country of residence is unclear on the record before the Court, see generally id. 2

The complaint does not specify when the O-1A petition was filed for plaintiff. See generally Compl.

processing is completed.’” Compl. ¶ 33; id., Ex. B, Email from U.S. Consulate in Frankfurt to Pl.

(Mar. 25, 2025), ECF No. 1-2. As of September 19, 2025, the CEAC case status for plaintiff

continued to show that his case was “refused for administrative processing,” “will remain refused

while undergoing such processing,” and that he “will receive another adjudication once such

processing is complete.” Compl. ¶ 38; CEAC Status.

Plaintiff alleges that the delay in receiving a final decision on his nonimmigrant visa

application has caused “frustration and disappointment for the entire family, particularly after

[plaintiff, his wife, and children, including plaintiff’s nine-year-old U.S. citizen son,] had already

made logistical and emotional preparations for a U.S. move.” Compl. ¶ 36. Additionally,

plaintiff’s “inability to establish a physical presence in the United States undercuts his credibility

with investors, suppliers, and clients.” Id. ¶ 35. Awaiting resolution, the family “has also borne

the costs of maintaining dual residences,” and the older children are “unable to plan their studies

and futures with clarity” and therefore “remain in limbo.” Id. ¶ 36.

C. Procedural History

On September 19, 2025, just over eight months after plaintiff’s visa application was placed

in “administrative processing,” plaintiff filed a two-count complaint, seeking to compel defendants

to adjudicate his visa application. Id. ¶ 28. In Count I, plaintiff petitions for mandamus, id. ¶¶ 44-53, and in Count II, plaintiff brings a claim under § 706(1) of the APA, alleging that his visa

application has been unreasonably delayed, id. ¶¶ 54-62. Plaintiff asserts that defendants have a

“nondiscretionary duty to Plaintiff, which requires that ‘all nonimmigrant visa applications shall

be reviewed and adjudicated by a consular officer,’” id. ¶¶ 46, 51, 55 (emphasis omitted).

Accordingly, he seeks a writ of mandamus directing adjudication of his application, or an order

pursuant to the APA’s § 706(1) directing the same.

On December 5, 2025, defendants moved to dismiss plaintiff’s complaint, under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defs.’ Mem. at 1, which motion is now ripe for

resolution, see Pl.’s Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 7; Defs.’ Reply in.

Support of Mot. to Dismiss (“Defs.’ Reply”), ECF No. 9.

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

“Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized

by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “[F]orbidden . . . from acting beyond

[their] authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), federal courts thus

“have an affirmative obligation ‘to consider whether the constitutional and statutory authority exist

for us to hear each dispute,’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C.

Cir. 1996) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent

subject-matter jurisdiction, a case must be dismissed. See Arbaugh v. Y&H Corp., 546 U.S. 500,

506-07 (2006); FED R. CIV. P. 12(b)(1), 12(h)(3).

When reviewing a motion to dismiss under Rule 12(b)(1), the court must “assume that the

complaint states a valid legal claim,” Huron v. Cobert, 809 F.3d 1274, 1278 (D.C. Cir. 2016), and

“accept the well-pleaded factual allegations as true and draw all reasonable inferences from those

allegations in the plaintiff’s favor,” Kareem v. Haspel, 986 F.3d 859, 865 (D.C. Cir. 2021) (quoting

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)). Furthermore, “[a court] may consider

materials outside the pleadings to determine [its] jurisdiction.” Id. at 866 n.7.

B. Motion to Dismiss for Failure to State a Claim

To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A facially plausible claim pleads facts that are not “‘merely consistent with’ a defendant’s liability”

but “that allow[] the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at 556-57). In deciding a motion

under Rule 12(b)(6), a court must accept all factual allegations as true, “even if doubtful in fact,”

Twombly, 550 U.S. at 555, and “construe the complaint ‘in favor of the plaintiff,’” Langeman v.

Garland, 88 F.4th 289, 294 (D.C. Cir. 2023) (quoting Hettinga v. United States, 677 F.3d 471, 476

(D.C. Cir. 2012)). Courts, however “need not accept inferences . . . not supported by the facts set

out in the complaint, nor must the court accept legal conclusions.” Id. (quoting Hettinga, 677 F.3d

at 476). In determining whether a complaint fails to state a claim, although a court must review

the whole complaint, Twombly, 550 U.S. at 555, courts are limited to “consider[ing] only the facts

alleged in the complaint, any documents either attached to or incorporated in the complaint and

matters of which [the court] may take judicial notice,” Marshall’s Locksmith Serv. Inc. v. Google,

LLC, 925 F.3d 1263, 1271-72 (D.C. Cir. 2019) (second alteration in original) (quoting Hurd v.

Dist. of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017)).

III. DISCUSSION

Defendants advance three arguments in support of dismissal: (1) that plaintiff fails to

identify a discrete, non-discretionary duty to adjudicate his visa application; (2) that the consular

non-reviewability doctrine bars judicial review; and (3) that even if the court assesses the merits,

plaintiff fails to state a claim. Defs.’ Mem. at 4-19. Each is discussed in turn, and plaintiff’s

failure on the merits adequately to allege an unreasonable delay, provides the ground to resolve

this motion.

A. Non-Discretionary Duty

“[T]o proceed under either the APA or the Mandamus Act based on a claim of ‘an agency’s

unreasonable delay,’” Asadi v. Dep’t of State, No. 23-cv-1953 (RC), 2024 WL 3835409, at *5

(D.D.C. Aug. 15, 2024) (quoting Arabzada v. Donis, 725 F. Supp. 3d 1, 11 (D.D.C. 2024)), a

plaintiff “must first allege that the agency ‘failed to take a discrete agency action that it is required

to take,’” Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 340 (D.C. Cir. 2023) (quoting

Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004)); see also Viet. Veterans of Am. v.

Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010) (stating that “standards for obtaining relief” under

the Mandamus Act and the APA “are essentially the same”); Babamuradova v. Blinken, 633 F.

Supp. 3d 1, 19 (D.D.C. 2022) (“What plaintiffs must show to establish a mandamus claim is similar

to what they must show . . . under the APA, as in both instances plaintiffs must establish that the

government has a clear, nondiscretionary duty.”); Hojjatoleslami v. Rubio, No. 24-cv-2871 (JDB),

2025 WL 2159196, at *4 (D.D.C. July 30, 2025) (“[T]he Court can compel the defendants to take

further action on Hojjatoleslami’s application only if (i) the defendants are under a clear,

nondiscretionary duty to do so and (ii) they have unreasonably delayed discharging that duty.”).

Defendants argue that plaintiff’s claims are not reviewable here because “[p]laintiff cannot identify

a clear, non-discretionary duty requiring a consular office to take any action on the Visa

Application now that it has been refused under INA Section 221(g).” Defs.’ Mem. at 4. To bolster

their argument, defendants further assert that the unpublished D.C. Circuit decision in Karimova

v. Abate, No. 23-5178, 2024 WL 3517852 (D.C. Cir. July 24, 2024), is “dispositive of this case.”

Defs.’ Mem. at 5 & n.1.

In Karimova, the D.C. Circuit held that the plaintiff had failed “adequately [to] allege[]

that the consular officer has . . . a duty” to adjudicate her visa application conclusively, where

plaintiff had “relie[d] on Section 555(b) of the APA”—“and only Section 555(b)”—“as the source

of the consular officer’s alleged duty,” because “Section 555(b) does no such thing.” Karimova,

2024 WL 3517852, at *1, 3 (emphasis in original); see 5 U.S.C. § 555(b) (providing that “each

agency shall proceed to conclude a matter presented to it” “within a reasonable time”). The Circuit

reasoned that Section 555 is not “a specific, unequivocal command to act that would justify

mandamus or [APA] Section 706(1) relief every time someone complained of delay,” and instead

“simply expresses a congressional view that agencies should act within reasonable time frames,”

“does not in any way dictate how the agency can handle [the plaintiff’s] rejected paperwork after

a decision has been made,” and “at most could have entitled her to the official refusal decision she

already received.” Id. at *3-4 (citation and internal quotation mark omitted) (emphasis in original).

The Court pointed to three additional considerations that reinforced its conclusion: (1) “consular

officers have broad discretion when adjudicating visa applications,” id. at *4; (2) plaintiff’s

“‘matter’ ha[d] already been ‘conclude[d],’” id. (second alteration in original) (quoting 5 U.S.C. §

555(b)); and (3) plaintiff’s claim arose “within a field that is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations and the war power,” which

“types of claims generally fall outside the Judicial Branch’s wheelhouse,” id. at *5 (cleaned up).

Karimova may “cast[] some doubt on whether consular officers are indeed subject to a

discrete, mandatory duty to timely complete administrative processing after a visa application has

already been ‘refused.’” Baygan v. Blinken, No. 23-cv-2840 (JDB), 2024 WL 3723714, at *5 n.1

(D.D.C. Aug. 8, 2024); see also Mahmoodi v. Altman-Winans, No. 24-cv-2010 (BAH), 2025 WL

763754, at *4 (D.D.C. Mar. 11, 2025). Nonetheless, contrary to defendants’ urging to treat

Karimova as “dispositive of the claims” here, Defs.’ Mem. at 5, unlike in Karimova, plaintiff relies

on 8 U.S.C. § 1202(d) of the INA, in addition to Section 555(b), as the source of defendants’

alleged non-discretionary duty, see Compl. ¶¶ 55, 57, so Karimova’s holding that Section 555(b)

does not create a nondiscretionary duty does not necessarily dispose of plaintiff’s claims.

In any event, to avoid unnecessarily “enter[ing] into the legal quagmire of differing views

on the . . . issue” whether Karimova precludes a finding of a mandatory, non-discretionary duty

here, Asim v. Blinken, No. 24-cv-638 (JEB), 2024 WL 3338778, at *3 (D.D.C. July 8, 2024), “the

appropriate action here” is “[a]ssuming, without deciding, that a mandatory non-discretionary

agency action applies in the form of the statutory requirement that ‘[a]ll immigrant visa

applications shall be reviewed and adjudicated by a consular officer,’” Hamdan v. Oudkirk, No.

24-cv-1001 (BAH), 2024 WL 4553983, at *7 (D.D.C. Oct. 23, 2024) (quoting 8 U.S.C. § 1202(b));

see also Karimova, 2024 WL 3517852, at *6 (“locating [USCIS’s] ‘nondiscretionary duty’ to

adjudicate visa petitions in a special provision of the immigration code, not Section 555(b)”

(quoting Da Costa, 80 F.4th at 340)); Asadi, 2024 WL 3835409, at *5 (“assum[ing] favorably to

Plaintiff that her complaint identifies a clear, non-discretionary duty . . . [even though] Plaintiff

largely relies on section 555(b) of the APA as the source of such a duty . . . [since] her claims fail

on the merits”); Giza v. Blinken, No. 23-cv-1641 (CRC), 2024 WL 3967284, at *4 (D.D.C. Aug.

27, 2024) (holding the same and noting “[t]he Court is mindful of Karimova . . . . [H]owever,

[plaintiffs] also invoke more specific provisions in the INA—namely, 8 U.S.C. § 1202(b),” an

identically worded provision to Section 1202(d)).

Without clear, binding precedent foreclosing plaintiff’s position that the INA imposes a

non-discretionary duty on the government to adjudicate specific visas, the assumption of

reviewability permits consideration of the merits of plaintiff’s claims. See Adan v. Blinken, No.

24-cv-591 (JDB), 2024 WL 5168521, at *2 n.5 (D.D.C. Dec. 19, 2024) (holding in a similar case

that “courts may address the merits of a case when that course of action ‘avoid[s] a doubtful issue

of statutory jurisdiction’” (quoting Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728

(D.C. Cir. 2008))); see, e.g., Niyomwungere v. Blinken, No. 24-cv-1990 (APM), 2024 WL

5075827, at *3 (D.D.C. Dec. 11, 2024) (post-Karimova suit holding that “the court joins other

courts in this District that have assumed without deciding that a plaintiff made out a claim of a

clear and non-discretionary duty and proceeds to evaluate the delay”); Giza, 2024 WL 3967284,

at *4 (“The Court need not decide whether the INA or its regulations impose this duty because,

either way, the [plaintiffs] have not plausibly alleged that the delay in adjudicating their visa

applications is unreasonable.”); Sereshti v. Gaudiosi, No. 24-cv-1288 (BAH), 2024 WL 4625802,

at *6 (D.D.C. Oct. 30, 2024) (same); Baygan, 2024 WL 3723714, at *5 (same). 3

B. Consular Nonreviewability

Defendants further assert that plaintiff’s suit “runs headfirst into the consular nonreviewability doctrine,” Defs.’ Mem. at 9, which “shields a consular official’s decision to issue or

withhold a visa from judicial review,” id. at 10 (quoting Colindres v. Dep’t of State, 71 F.4th 1018,

1021 (D.C. Cir. 2023), cert. denied, No. 23-348, 2024 WL 3259699 (U.S. July 2, 2024)). “[T]wo

narrow exceptions” to the doctrine exist: (1) when the denial of a visa “burdens the citizen’s

constitutional rights,” and (2) “when a statute explicitly authorizes judicial review.” Colindres, 71

F.4th at 1021 (internal quotation marks omitted) (quoting Baan Rao Thai Restaurant v. Pompeo,

985 F.3d 1020, 1024-25 (D.C. Cir. 2021)).

Plaintiff also argues that “[t]o the extent 8 USC § 1202(d) may be ambiguous as to what it means to ‘adjudicate’ a visa application, the Defendants are not entitled to deference” because of the Supreme Court’s decision in Loper Bright v. Raimondo, 603 U.S. 369 (2024); Pls.’ Opp’n at 3. Defendants do not invoke deference to their interpretation of the word “adjudicate,” see generally Defs.’ Mem.; Defs.’ Reply, and for the reasons discussed, defendants are assumed to have the claimed duty to adjudicate plaintiff’s visa application, rendering plaintiff’s argument irrelevant.

Defendants contend that because “[a] consular officer has decided to withhold issuing a

visa,” this “ends this matter.” Defs.’ Mem. at 11. The argument is predicated on the defendants’

assumption that the consular officer’s “refusal” of the plaintiff’s application at the U.S. Consulate

General in Frankfurt in January 2025 is “final and conclusive.” Id. at 9 (quoting Dep’t of State v.

Muñoz, 602 U.S. 899, 908 (2024)). Defendants’ arguments are plainly contrary to plaintiff’s

allegations that the “consular officer did not express any concern with the substance of his petition

but told him that his visa would require administrative processing,” that the Consulate told him

“certain administrative documents were needed to complete processing,” and that the Consulate

told him that the delay is a “‘normal part of the visa application process’ and that the embassy ‘will

see that the application is adjudicated as soon as the administrative processing is completed,’”

Compl. ¶¶ 28-29, 33 (emphasis added), all of which indicate an ongoing review.

Defendants only passingly acknowledge the near-universal consensus of Judges on this

Court, including the undersigned, holding the doctrine does not apply when a consular officer has

refused a visa application under 8 U.S.C. § 1201(g), but the application remains in a state of

administrative processing. Defs.’ Mem. at 10-11 (citing Janay v. Blinken, 743 F. Supp. 3d 96, 111

(D.D.C. 2024)); see, e.g., Sereshti, 2024 WL 4625802, at *4 (“[T]he consular officer’s ‘refusal’ of

plaintiff’s visa application subject to further ‘administrative processing’ may not have been a final

decision on his application, but rather a ‘temporary measure, signaling that processing [was]

ongoing.’” (second alteration in original)); Baygan, 2024 WL 3723714, at *4 (post-Karimova suit

concluding “that refusal of an application for administrative processing is a temporary, interim

status and that the consular nonreviewability doctrine does not apply under the final-decision

grounds raised by the State Department”); Al-Gharawy v. Dep’t of Homeland Sec., 617 F. Supp.

3d. 1, 16 (D.D.C. 2022) (finding that the consular nonreviewability doctrine did not apply because

“the factual allegations in the complaint, taken as true at this stage in the proceedings, indicate that

no final decision has been made”). Instead, defendants, again, rely on Karimova, 2024 WL

3517852, arguing its holding “necessitates an end” to the debate whether consular

nonreviewability bars plaintiff’s claims. Defs.’ Mem. at 10.

In Karimova, a consular officer “reviewed [plaintiff’s] application and interviewed her,”

“officially ‘refused’ her application,” and yet “placed her application in administrative

processing.” Karimova, 2024 WL 3517852, at *2 (internal quotation marks omitted). The D.C.

Circuit affirmed the dismissal of plaintiff’s complaint, which alleged that “the consular

officer . . . ‘breached [her] duty . . . to make a final decision’ on [plaintiff’s] application ‘within a

reasonable time,’” holding that once “a consular officer makes an official decision refusing to issue

a visa,” that visa “remains officially refused.” Id. at *2 (second omission in original). Thus,

construing the plaintiff’s claim to be a request to order the consular officer to “make yet another

‘final decision’ on [plaintiff’s] already-refused visa application,” the Circuit found the plaintiff

had “not identified an adequate legal basis for that duty.” Id. at *6.

Karimova “suggests that once ‘a consular officer reviewed Plaintiff’s application,

interviewed her, and ruled that no visa would be granted,’ Plaintiff’s visa application was

‘officially refused’ notwithstanding its later placement in administrative processing.” Asadi, 2024

WL 3835409, at *4 (alterations accepted) (quoting Karimova, 2024 WL 3517852, at *4).

Karimova thus leaves uncertain the case law in this District rejecting application of the consular

nonreviewability doctrine where, as here, a plaintiff’s application has been “refused” but

simultaneously—and confusingly—is still subject to further administrative processing. To be sure,

some Judges on this Court have taken Karimova to repudiate those decisions. Defs.’ Mem. at 6-7

(citing Yaghbounezhad v. Stufft, 734 F. Supp. 3d 87 (D.D.C. 2024), and Sedaghatdoust v. Blinken,

735 F. Supp. 3d 1 (D.D.C. 2024)); see also Amjad v. Schofer, No. 24-cv-1773 (CJN), 2024 WL

4416984, at *1 (D.D.C. Oct. 4, 2024). These cases are not binding and have been found

unpersuasive by other Judges on this Court, including the undersigned. See, e.g., Hamdan, 2024

WL 4553983, at *4 n.2; Janay, 2024 WL 3432379, at *9-10; De Belinay v. Mayorkas, No. 24-cv240 (CRC), 2025 WL 671120, at *4 (D.D.C. Mar. 3, 2025). 4

Karimova does not, as defendants urge, “end . . . [the] debate,” Defs.’ Mem. at 10, and

require disposal of this case on consular nonreviewability grounds. First, taking plaintiff’s

allegations as true, see Ziglar v. Abbasi, 582 U.S. 120, 127 (2017), the consular officer’s “refusal”

of plaintiff’s visa application subject to further “administrative processing” was a “normal part of

the visa application process” after which the “application [would be] adjudicated.” Compl. ¶ 33.

The facts of this case are in material respects indistinguishable from post-Karimova suit Fallahi v.

Bell, where plaintiff’s application for a nonimmigrant worker visa had similarly been refused,

“placed in ‘administrative processing,’” and plaintiff received “no meaningful status updates.” No.

23-cv-3292 (APM), 2024 WL 3887380, at *1 (D.D.C Aug. 20, 2024). The court reasoned that

“[w]hile Defendants cannot direct a particular outcome with respect to Plaintiff’s visa

Defendants cite Department of State v. Muñoz, 602 U.S. 899 (2024), and Baan Rao Thai Restaurant v. Pompeo, 985 F.3d 1020, 1024 (D.C. Cir. 2021), to support their argument that the consular nonreviewability doctrine bars review of plaintiff’s claim, Defs.’ Mem. at 9-10, but these cases are inapposite. In Baan Rao, the D.C. Circuit addressed “whether a final decision on the merits of a visa application precluded judicial review,” not whether, as here, “the doctrine of consular nonreviewability preclude[s] judicial review of ‘refused’ visa applications that remain[] subject to additional administrative processing.” Isse v. Whitman, No. 22-cv-3114 (BAH), 2023 WL 4174357, at *5 (D.D.C. June 26, 2023); see also Baygan, 2024 WL 3723714, at *5 (collecting cases and concluding that “Baan Rao says nothing about the judicial reviewability of visa processing delay occurring before an officer has made a final decision” (emphasis in original)). Similarly, in Muñoz, the Supreme Court reaffirmed the doctrine of consular nonreviewability, holding the doctrine barred judicial review of a consular officer’s denial of plaintiff noncitizen’s visa application, see generally Muñoz, 602 U.S. 899, but focused on “the action of an executive officer ‘to admit or to exclude a[] [noncitizen],’” id. at 908 (citation omitted), which is a different circumstance than that at issue here, as defendants concede, where “the basis for Plaintiff’s challenge is not of final agency action, but rather agency inaction,” Defs.’ Mem. at 19 n.3 (emphasis added); see also Azeez v. Murphy, No. 23-cv-1947 (CRC), 2024 WL 3924565, at *2 (D.D.C. Aug. 23, 2024) (recognizing the same); Baygan, 2024 WL 3723714, at *5 (same). Similarly, defendants’ invocation of Kolesnikov v. Blinken, No. 23-cv-1675 (TSC), 2024 WL 3638345, at *2 (D.D.C. Aug. 2, 2024), see Defs.’ Mem. at 12, is equally unavailing given that the plaintiff in that case, unlike here, did not allege any delay due to administrative processing.

adjudications, nothing precludes them ‘from directing consular officers to conclude matters

presented to them within a reasonable time.’” Id. at *3 (emphasis added) (quoting Al-Gharawy,

617 F. Supp. 3d at 10); see also Baygan, 2024 WL 3723714, at *4 (post-Karimova suit finding the

same). Second, the D.C. Circuit in Karimova did “not decide whether th[e] principle of

nonreviewability applies” in cases, such as the instant one, “which purport[] to challenge the

timing rather than content of a consular visa decision.” Karimova, WL 3517852, at *6; see De

Belinay, 2025 WL 671120, at *4 n.2 (“[Karimova] does not change this conclusion because it does

not displace the principle that ‘the doctrine of consular nonreviewability applies to challenges

based on substance, not timing.’” (quoting Azeez v. Murphy, No. 23-cv-1947 (CRC), 2024 WL

3924565, at *3 (D.D.C. Aug. 23, 2024)); Giza, 2024 WL 3967284, at *4 n.2 (D.D.C. Aug. 27,

2024) (recognizing the same and refusing to use consular nonreviewability as a bar to plaintiff’s

actions).

Finally, defendants insist that Karimova binds this district court. Defs.’ Mem. at 5 n.1.

Karimova, however, is a decision that the Circuit has twice determined should be unpublished.

Karimova, 2024 WL 3517852, at *1; Order, Karimova v. Abate, No. 23-5178 (D.C. Cir. Sept. 10,

2024), Doc. No. 2074062 at 1. In this posture, the case “may be cited as precedent” under D.C.

Circuit rules, D.C. CIR. R. 32.1(b)(1)(B), but the panel’s decision to issue Karimova as unpublished

reflects a determination that the decision has “no precedential value in that disposition,” D.C. CIR.

R. 36(e)(2), and did “not ‘alter[], modif[y], or significantly clarif[y] a rule of law,” In re Grant,

635 F.3d 1227, 1232 (D.C. Cir. 2011) (alterations in original) (quoting D.C. CIR. R. 36(c)(2)(B));

see also Ahmed v. Blinken, No. 24-cv-153 (LLA), 2024 WL 4903771, at *4 n.4 (D.D.C. Nov. 27,

2024) (recognizing Karimova’s lack of precedential value and refusing to apply it). The

unpublished Karimova decision has led some Judges on this Court to view the decision as requiring

dismissal of visa mandamus cases on similarly pleaded factual allegations for failure to state a

claim, see, e.g., Ibrahim v. Spera, No. 23-cv-3563 (ABJ), 2024 WL 4103702, at *3 (D.D.C. Sept.

6, 2024), while others have proceeded to examine the merits of the sufficiency of the plaintiff’s

underlying unreasonable delay claim, see, e.g., Akter v. Flook, No. 24-cv-146 (CRC), 2025 WL

661296, at *2 n.1 (D.D.C. Feb. 28, 2025), Hajizadeh v. Blinken, No. 23-cv-1766 (LLA), 2024 WL

3638336, at *3 n.3 (D.D.C. Aug. 2, 2024). This Court adopts the latter course. See Gundas v.

Blinken, No. 24-cv-1064 (RC), 2024 WL 5056375, at *6 (D.D.C. Dec. 10, 2024) (“[T]he Court

finds here that it does not need to determine the extent to which Karimova disrupts prior decisions

rejecting the Government’s reliance on the consular non-reviewability doctrine, as [plaintiff’s]

claims fail on their merits.” (citation omitted)); Momeni v. Blinken, No. 23-cv-3421 (RCL), 2024

WL 4332604, at *5 n.5 (D.D.C. Sept. 27, 2024) (same); Sharifishourabi v. Blinken, No. 23-cv3382 (RC), 2024 WL 3566226, at *4-5 (D.D.C. July 29, 2024) (same); Sereshti, 2024 WL

4625802, at *5 (same). 5

C. Merits

On the merits, defendants argue that plaintiff fails to state a plausible claim for relief

because any delay in the adjudication of plaintiff's visa application is not unreasonable. See Defs.’

Mem. at 12-19. “To state a claim for unreasonable delay, [p]laintiffs must first allege that the

agency ‘failed to take a discrete agency action that it is required to take,’ and, second, that the

Defendants double-down on their argument that Karimova should be treated as binding and dispositive here, pointing to Khaksari v. Chairman, Broad. Board of Governors, 451 F. App’x 1, 4 (D.C. Cir. 2011), Defs.’ Mem. at 5 n.1, where a Circuit panel relied on D.C. CIR. R. 32.1(b)(1)(B), which provides that counsel “may . . . cite[] as precedent” unpublished decisions entered after January 1, 2002, to note that an unpublished decision “has the force of precedent.” Khaksari, 451 F. App’x at 4. Khaksari is itself unpublished, however, and even a decision with precedential value based on persuasive reasoning falls short of having binding effect, particularly in light of published D.C. Circuit opinions holding that “[u]npublished opinion[s] . . . [have] no precedential effect with respect to other parties.” Head v. Wilson, 792 F.3d 102, 109 (D.C. Cir. 2015) (omission in original) (quoting Nat’l Classification Comm. v. United States, 765 F.2d 164, 170 (D.C. Cir. 1985)). In any event, whether Karimova is “controlling or not,” Defs.’ Mem. at 5 n.1, for the reasons stated supra in Part III.A, the facts of this case are distinguishable from Karimova, and for the reasons stated in Part III.C, plaintiff’s claims fail on the merits.

delay was unreasonable.” Da Costa, 80 F.4th at 340 (quoting Norton v. S. Utah Wilderness All.,

542 U.S. 55, 64 (2004), and citing Am. Anti-Vivisection Soc’y v. Dep’t of Agric., 946 F.3d 615,

621 (D.C. Cir. 2020)).

The D.C. Circuit’s six “TRAC” factors, set out below, guide this Court’s unreasonable

delay analysis:

(1) [T]he time agencies take to make decisions must be governed by a rule of

reason; (2) where Congress has provided a timetable or other indication of the speed

with which it expects the agency to proceed in the enabling statute, that statutory

scheme may supply content for this rule of reason; (3) delays that might be

reasonable in the sphere of economic regulation are less tolerable when human

health and welfare are at stake; (4) the court should consider the effect of expediting

delayed action on agency activities of a higher or competing priority; (5) the court

should also take into account the nature and extent of the interests prejudiced by

delay; and (6) the court need not find any impropriety lurking behind agency

latitude in order to hold that agency action is unreasonable delayed.

TRAC, 750 F.2d at 80 (cleaned up); see also Da Costa, 80 F.4th at 340 (“[T]o guide our

unreasonable-delay analysis, we ordinarily look to six non-exclusive TRAC factors.” (citing TRAC,

750 F.2d at 80)). In cases challenging unreasonable agency delay, “the standards for obtaining

relief” under the APA and the Mandamus Act are “essentially the same.” Shinseki, 599 F.3d at

659 n.6; see Norton, 542 U.S. at 63-64.

Plaintiff argues that evaluation of the TRAC factors is inappropriate at the motion to dismiss

stage because the TRAC is a “question of fact that must [not] be decided . . . on a motion to

dismiss.” Pl.’s Opp’n at 11. Where a plaintiff’s complaint supplies sufficient factual allegations

to evaluate the TRAC factors, however, a court may do so to determine whether the facts alleged

are sufficient to state a plausible claim for unreasonable administrative delay. See, e.g., Mokkapati

v. Mayorkas, No. 21-cv-1195 (BAH), 2022 WL 2817840, at *4 n.4 (D.D.C. July 19, 2022)

(collecting cases reflecting “the majority view in this District . . . that application of the TRAC

factors is appropriate at the motion-to-dismiss stage when the facts alleged do not support a

plausible claim of unreasonable delay”); Sarlak v. Pompeo, No. 20-cv-35 (BAH), 2020 WL

3082018, at *5 (D.D.C. June 10, 2020). Here, the parties have supplied sufficient factual

allegations, including undisputed specific dates when relevant agency actions occurred, rendering

application of the TRAC factors entirely appropriate. See, e.g., Mukkavilli v. Jaddou, No. 23-5183,

2024 WL 1231346, at *1-2 (D.C. Cir. Mar. 22, 2024) (affirming dismissal of unreasonable-delay

claim following weighing of TRAC factors); Da Costa, 80 F.4th at 339-46 (same). On review,

these allegations clearly show that the agency’s delay in adjudicating plaintiff’s visa is not

unreasonable.

1. TRAC Factors 1 and 2

The first two TRAC factors, which consider “the extent of and reasons for” agency delays,

Afghan & Iraqi Allies v. Blinken, 103 F.4th 807, 816 (D.C. Cir. 2024), both weigh in favor of

defendants. The first TRAC factor—whether the agency follows a rule of reason in processing

visas—is the “most important” one. Id. (quoting In re Core Commc’ns Inc., 531 F.3d 849, 855

(D.C. Cir. 2008)). This factor is often evaluated alongside the second TRAC factor—whether

“Congress has established a timetable,” Mukkavilli, 2024 WL 1231346, at *1 (citing TRAC, 750

F.2d at 80)—because consideration of whether agency adjudication delays are unreasonable

necessarily implicates any deadlines imposed by Congress, see Da Costa, 80 F.4th at 340, and the

second factor thus may “give[] content to the first,” Afghan & Iraqi Allies, 103 F.4th at 816

(quoting In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999)).

In assessing the first TRAC factor, courts “evaluate the length of the delay in light of ‘the

complexity of the task at hand, the significance (and permanence) of the outcome, and the

resources available to the agency.’” Da Costa, 80 F.4th at 340 (quoting Mashpee Wampanoag

Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)). They additionally consider

“the level of disproportionality . . . previously held sufficient to grant relief.” Id. at 344.

Both parties recognize “the absence of a deadline” for adjudication of the visa plaintiff

seeks. Pl.’s Opp’n at 13; see also Defs.’ Mem. at 14. Plaintiff argues, however, that 8 U.S.C. §

1571(b) provides a “timetable” by stating that “[i]t is the sense of Congress that the processing of

an immigration benefit application should be completed not later than 180 days after the initial

filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of

this title should be processed not later than 30 days after the filing of the petition.” Pl.’s Opp’n at

14-15 (emphasis omitted) (quoting 8 U.S.C. § 1571(b)). As a starting point, § 1571 is directed at

the Immigration of Naturalization Service, which was dissolved in 2003 and divided into three

agencies—U.S. Citizenship and Immigration Services, Customs and Border Patrol, and

Immigration and Customs Enforcement, see generally Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135—none of which are named as defendants in this case and all of which

are located within the Department of Homeland Security, also not named as a defendant. See 8

U.S.C. § 1571 (“The purposes of this subchapter are to . . . provide for regular congressional

oversight of the performance of the Immigration and Naturalization Service in eliminating the

backlog and processing delays in immigration benefits adjudications.”). As discussed supra in

Part I.A, USCIS approved plaintiff’s O-1 visa petition, at which point the responsibility for

approving plaintiff’s ultimate visa application fell to the U.S. Consulate in Frankfurt, which is

under the direction of the Department of State, the department in which all named defendants are

lodged. See 8 U.S.C. § 1201.

Even if § 1571 applied here, the section would not dramatically tip matters in plaintiff’s

favor. To be sure, in Da Costa, the D.C. Circuit considered § 1571(b) and found that this statutory

provision “somewhat favor[ed]” the plaintiffs, who had waited for longer than 180 days for their

application to be processed, Da Costa, 80 F.4th at 344, as plaintiff has here. In so holding,

however, the Circuit did not hold that § 1571(b) was a legal measure of the reasonableness of

agency delay, calling it an “aspirational statement” that was “insufficient to set a deadline.” Id.;

see also, e.g., Palakuru v. Renaud, 521 F. Supp. 3d 46, 51 (D.D.C. 2021) (interpreting § 1571(b)’s

language as “nonbinding” and “prefatory” and collecting cases supporting this conclusion).

Ultimately, the Circuit found it most significant that “the delay” alleged in the plaintiffs’ case

“ha[d] not reached the level of disproportionality . . . previously held sufficient to grant relief.”

Da Costa, 80 F.4th at 344. The same is true here.

“Absent a congressionally supplied yardstick, courts typically turn to case law as a guide.”

Kahenya v. Blinken, No. 23-cv-740 (TSC), 2024 WL 1253854, at *3 (D.D.C. Mar. 25, 2024)

(quotation marks and citation omitted). Courts have drawn no bright lines to determine

reasonableness, but “[d]ecisions regarding the admission of foreign nationals are granted an

especially wide degree of deference, as they frequently implicate relations with foreign powers, or

involve classifications defined in the light of changing political and economic circumstances.”

Didban v. Pompeo, 435 F. Supp. 3d 168, 176 (D.D.C. 2020) (quotation marks omitted) (quoting

Trump v. Hawaii, 58 U.S. 667, 702-03 (2018)). This deference has led “judges in this District [to]

‘consistently’ h[old]” that “two-to three year [delays] . . . do[] not amount to unreasonable delay.”

Tahavori v. Blinken, No. 23-cv-1460 (JDB), 2024 WL 1328546, at *5 (Mar. 28, 2024) (quoting

Tekle v. Blinken, No. 21-cv-1655 (APM), 2022 WL 1288437, at *3 (D.D.C. Apr. 29, 2022)); see

also Da Costa, 80 F.4th at 339-40, 342 (finding a four-and-a-half-year delay not unreasonable);

Azeez, No. 23-cv-1947 (CRC), 2024 WL 3924565, at *5 (D.D.C. Aug. 24, 2024) (finding

seventeen-month delay not unreasonable). In contrast, delays of five years or more have

“generally” been found unreasonable. Yavari v. Pompeo, No. 19-cv-2524, 2019 WL 6720995, at

*8 (C.D. Cal. Oct. 10, 2019); see also Tahavori, 2024 WL 1328546, at *5 (citing cases noting the

same).

Nothing in plaintiff’s complaint justifies departure from this precedent, and any material

harm uniquely suffered by the plaintiff because of the delay is addressed by the other TRAC factors.

The visa application at issue was placed in administrative processing on January 16, 2025, and was

pending for just over eight months when plaintiff filed suit on September 19, 2025. Compl. ¶ 28.

“This is far too short a delay to be unreasonable.” Mahmoodi, 2025 WL 763754, at *9. “Finding

an unreasonable delay here, when less time has passed than in [collected cases], would upset the

rule prior cases have established.” Li v. Heller, No. 23-cv-3025 (DLF), 2024 WL 3400111, at *6

(D.D.C. July 12, 2024) (citations omitted).

Taken together, the first and second factors thus weigh in defendants’ favor.

2. TRAC Factor 4

The fourth TRAC factor considers whether “expediting delayed action” will have a harmful

effect on “agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80 (citations

omitted). Defendants correctly point out that this factor “carries significant weight,” Defs.’ Mem.

at 16 (citing Mashpee Wampanoag Tribal Council, 336 F.3d at 1100), and weighs heavily in

defendants’ favor here, id.

Granting expedited agency action is considered inappropriate when that relief “would

necessarily come ‘at the expense of other similarly situated applicants,’” with “no net gain” in

adjudications achieved. Da Costa, 80 F.4th at 343-44 (quoting Am. Hosp. Ass’n v. Burwell, 812

F.3d 183, 192 (D.C. Cir. 2016), and In re Barr Lab’ys, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)); see

also Mukkavilli, 2024 WL 1231346, at *2 (recognizing same). Particularly “where resource

allocation is the source of the delay, courts have declined to expedite action because of the impact

on competing priorities.” Armah v. Dep’t of State, No. 22-cv-1714 (BAH), 2024 WL 2721634, at

*8 (D.D.C. May 28, 2024) (quoting Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 117 (D.D.C.

2005)).

Plaintiff argues that he “does not seek wholesale judicial reordering of visa priorities or

broad interference with agency operations,” but rather “adjudication of a single O-1 visa

application that has already undergone a completed interview.” Pl.’s Opp’n at 18. This argument

misses the mark on how visa adjudications work. The State Department has limited resources to

manage its “troubling” visa application backlog, R2 Techs. Corp. v. Rubio, No. 24-cv-369 (LLA),

2025 WL 436306, at *7 (D.D.C. Feb. 7, 2025), and “it is readily apparent that ‘[c]onsular

processing capacity is presently a zero-sum game,’” Giza, 2024 WL 3967284, at *7 (alteration in

original) (quoting Lee v. Blinken, No. 23-cv-1783 (DLF), 2024 WL 639635, at *6 (D.D.C. Feb.

15, 2024)). The D.C. Circuit recognizes “no basis for reordering agency priorities,” In re Barr

Lab’ys, 930 F.2d at 76, and, as such, this factor weighs in favor of defendants, see, e.g., Abdullahi

v. Blinken, No. 23-cv-3900 (RC), 2024 WL 4880423, at *8 (D.D.C. Nov. 25, 2024) (“Although

the underlying administrative process in this case . . . does not appear to be addressed or resolved

in a first-in-first-out basis, compelling agency action on Plaintiffs’ applications would ‘impose

offsetting burdens on equally worthy’ applicants by effectively putting Plaintiffs ‘at the head of

the queue,’ thereby ‘mov[ing] all others back one space and produc[ing] no net gain.’” (alterations

in original and citations omitted) (quoting In re Barr Lab’ys, 930 F.2d at 73, 75)); Niyomwungere,

2024 WL 5075827, at *5 (“No matter where Plaintiff lies in the queue, the relief he seeks would

‘inevitably entail a judicial reordering of the Department’s priorities.’” (quoting Khazaei v.

Blinken, No. 23-cv-1419 (JEB), 2023 WL 6065095, at *7 (D.D.C. Sept. 18, 2023)). “While the

effect of an individual case would be minimal, the accumulation of such individual cases being

pushed by judicial fiat to the front of the line would erode the ability of agencies to determine their

priorities.” Tate v. Pompeo, 513 F. Supp. 3d 132, 150 (D.D.C. Jan. 16, 2021).

Plaintiff objects that weighing TRAC factor 4 in defendant’s favor here would “effectively

render TRAC factor 4 dispositive in every visa-delay case, as any order compelling agency action

could be characterized as affecting agency priorities.” Pl.’s Mem. at 19. Even if any order

directing adjudication of a visa application would indeed result in some reordering of agency

priorities, that does not make TRAC factor 4 dispositive—plaintiffs who can show very long delays

in adjudication, for example, may be able to show that moving their application closer to the front

of the line is warranted, notwithstanding any concomitant reordering. See, e.g., Qureshi v.

Napolitano, No. 11-cv-5814 (YGR), 2012 WL 2503828, at *7 (N.D. Cal. June 28, 2012) (issuing

mandamus when delay was more than five years and agency conceded no investigation or

processing was underway).

Factor four weighs in favor of defendants.

3. TRAC Factors 3 and 5

“The third and fifth factors are often considered together, and require the Court to consider

plaintiffs’ interests, health, and welfare.” Momeni, 2024 WL 4332604, at *6 (quoting Chowdhury

v. Blinken, No. 21-cv-1205 (RCL), 2022 WL 136795, at *4 (D.D.C. Jan. 14, 2022)). While “the

individual health or welfare of th[e] specific plaintiff is most relevant when evaluating TRAC

factors three and five,” Khan v. Bitter, 23-cv-1576 (BAH), 2024 WL 756643, at *5 (D.D.C. Feb.

23, 2024), the third factor also looks to the impact on others from granting plaintiff’s demanded

relief, requiring attention to the “many others [who] face similarly difficult circumstances as they

await adjudication of their visa applications,” Mohammad v. Blinken, 548 F. Supp. 3d 159, 168-69 (D.D.C. 2021) (citation and internal quotation marks omitted). As already analyzed under

factor four, moving plaintiff’s visa application to the front of the line would necessarily divert

resources and move other applicants back in the line. See supra Part III.C.2.

Plaintiff alleges that the delay has caused him and his family “frustration and

disappointment,” “ongoing stress, emotional strain,” and “diminish[ed] . . . stability.” Compl.

¶ 36. In addition to “prevent[ing] [plaintiff] from executing his role as CEO of Industriax,” id. ¶

35, his older children are “unable to plan their studies and futures with clarity,” id. ¶ 36. While

this has led to emotional and financial distress, id., “this case is not one where, for example, the

plaintiff is ‘separated from his children and wife’ pending the adjudication of his visa,” Musaleev

v. Bitter, No. 24-cv-1100 (TJK), 2025 WL 315148, at *7 (D.D.C. Jan. 28, 2025) (quoting Ghadami

v. Dep’t of Homeland Sec., No. 19-cv-397 (ABJ), 2020 WL 1308376, at *9 (D.D.C. Mar. 19,

2020)); see also Gundas, 2024 WL 5056375, at *9 (“Seeking employment-based admission to the

United States necessarily entails some amount of career, economic, and educational uncertainty.”).

“Unlike in some other cases where prolonged family separation or underlying health concerns tied

specifically to the delay at issue drove courts to find that TRAC factors three and five weighed in

[a plaintiff’s] favor,” plaintiff and his family “do[] not face separation or injury to health because

of further delay.” Gundas, 2024 WL 5056375, at *9. Indeed, though repeatedly invoking “family

separation” in briefing, plaintiff does not allege that he has been separated from his family as a

result of the alleged delay. See Pl.’s Opp’n at 17. Additionally, the D.C. Circuit held that the third

and fifth TRAC factors do not favor noncitizens where, as here, the noncitizen failed “for example,

[to] allege that they are unable to access electricity, water, food, or shelter” due to delays in

immigration benefits adjudication. Da Costa, 80 F.4th at 345. The Circuit also recognized that

alleged financial harms and “uncertainty that results any time an individual must continue to wait

to secure a benefit,” which may prevent a noncitizen from “planning . . . and making arrangements

for [his] famil[y],” id. at 344-45 (citation omitted)—similar to plaintiff’s allegations here, see

Compl. ¶¶ 35-36—“are insufficient to tip TRAC factors three and five in [plaintiff’s] favor,” Da

Costa, 80 F.4th at 345. Thus, TRAC factors 3 and 5 weigh in favor of defendants.

4. TRAC Factor 6

The sixth and final TRAC factor provides that “the court need not ‘find any impropriety

lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed,’”

TRAC, 750 F.2d at 80 (citation omitted), and is neutral absent “plausible evidence of bad faith,”

Afghan & Iraqi Allies, 103 F.4th at 820; see also Da Costa, 80 F.4th at 345-46. Plaintiff in this

case concedes that “there may not be bad faith,” but contends that since defendants “do not provide

a sound justification for the delay . . . neither should there be a determination of good faith.” Pl.’s

Opp’n at 20. Plaintiff argues that the responses provided to him by the Department of State are

“only boilerplate,” Compl. ¶ 33, but “[t]his alone is not an accusation of ‘impropriety’ or bad

faith.” Mahmoodi, 2025 WL 763754, at *10 (quoting Palakuru v. Renaud, 521 F. Supp. 3d 46, 53

(D.D.C. 2021)). “[R]egardless, ‘the lack of plausible allegations of impropriety does not weigh

against [plaintiff],’ and the sixth factor is thus neutral and does not favor either side.” Id.

5. TRAC Factors Considered in Totality

Considering the TRAC factors together, plaintiff fails to state a claim of unreasonable delay

under the Mandamus Act or the APA. Other cases involving substantially longer delays than

presented here have overwhelmingly resulted in the same conclusion, and this Court applies the

same reasoning to plaintiff’s claims. See, e.g., Da Costa, 80 F.4th at 339-40, 342 (finding a fourand-a-half-year delay not unreasonable); Azeez, 2024 WL 3924565, at *5 (finding seventeenmonth delay not unreasonable); Mashaghzadehfard v. Blinken, No. 23-cv-3164 (RJL), 2024 WL

4198689, at *5-6 (D.D.C. Sept. 16, 2024) (finding nineteen-month delay not unreasonable);

Rahimian, 2023 WL 143644, at *7 (finding forty-one month delay not unreasonable); Zaman v.

Dep’t of Homeland Sec., No. 19-cv-3592 (ABJ), 2021 WL 5356284, at *6 (D.D.C. Nov. 16, 2021)

(finding forty-two month delay not unreasonable); Akrayi v. Dep’t of State, No. 22-cv-1289 (CRC),

2023 WL 2424600, at *3 (D.D.C. Mar. 9, 2023) (finding a nearly three-year delay not

unreasonable); Arab v. Blinken, 600 F. Supp. 3d 59, 70 (D.D.C. 2022) (finding a visa processing

delay of thirty months not unreasonable). In the face of this overwhelming precedent, plaintiff

fails to show that any of the other TRAC factors weigh so heavily in his favor as to outweigh the

overall reasonableness of the delay.

While recognizing the hardship for plaintiff and his family, see Compl. ¶¶ 35-36, countless

other noncitizens face similar or worse timetables as they await immigration decisions, see Da

Costa, 80 F.4th at 346 (affirming dismissal where “[r]uling in favor of Plaintiffs would require

USCIS to process [p]laintiffs’ petitions ahead of those of other petitioners who have been waiting

as long or longer for their EB-5 petitions to be adjudicated”); Burwell, 812 F.3d at 192 (collecting

cases “reject[ing] mandamus claims that would have had the effect of allowing the plaintiffs to

jump in the line, functionally solving their delay problem at the expense of other similarly situated

applicants”).

For all the stated reasons, plaintiff’s complaint must be dismissed for failure to state a

claim.

IV. CONCLUSION

For the foregoing reasons, defendants’ Motion to Dismiss, ECF No. 5, is granted. An Order

consistent with this Memorandum Opinion will be filed contemporaneously.

Date: July 10, 2026

BERYL A. HOWELL

United States District Judge

Oystacher v. Rubio

Authorities cited

Opinion · public domain