Chang v. United States Department of State

[5] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [6] AT SEATTLE [7] TIANYI CHANG, Case No. C23-01918-RSM [8] ORDER GRANTING MOTION 9 Plaintiff, TO DISMISS 10 v. 11 UNITED STATES DEPARTMENT OF STATE, et al., [12] Defendants. [13] I. INTRODUCTION [14] This matter comes before the Court on Defendants’ Motion to Dismiss pursuant to FRCP [15] 12(b)(6), Dkt. #7. The parties have filed opposition briefs, Dkts. #9 and #11. No party has [16] requested oral argument. The Court finds that the bulk of this case rests on a dispositive issue of [17] law, namely, whether or not Plaintiff has shown that Defendants have a non-discretionary duty [18] that the consular officer failed to take pursuant to the Administrative Procedure Act (“APA”). [19] For the reasons stated below, the Court GRANTS Defendants’ Motion to Dismiss. [20] II. BACKGROUND [21] For purposes of this Motion, the Court will accept all facts stated in the Complaint, Dkt. [22] #1, as true. Unless stated otherwise, the following facts are drawn from that pleading. [24] 1 On May 6, 2023, Amazon.com, Inc. filed an L-1B nonimmigration visa application on behalf of Plaintiff Tianyi Chang, a Chinese citizen. An L-1B nonimmigration visa is typically [2] filed by a corporation on behalf of an employee so that they can transfer to a United States parent, [3] affiliate, or subsidiary company to perform assignments involving specialized knowledge. Upon [4] approval of a Form I-129 petition by U.S. Citizenship and Immigration Services (“USCIS”), on [5] May 16, 2023, a consular officer at the U.S. Embassy in Beijing, China, interviewed Ms. Chang, [6] and ultimately refused her visa application under 8 U.S.C. § 1201 (g). The consular officer made [7] a determination that additional security vetting was necessary. Ms. Chang states that she has [8] suffered tremendous hardship due to the consular refusal. Specifically, she alleges that her [9] “individual personal growth” has been negatively affected, as well as “her team’s ability to move [10] forward on anticipated projects.” Dkt. #9, at 8. Additionally, Ms. Chang stated that “she suffers [11] from insomnia, dermatosis, and formed small nodes as a result of the stress.” Id. For these reasons, [12] Ms. Chang commenced this action on December 14, 2023, requesting this Court to compel [13] Defendants, the U.S. Department of State and USCIS, to complete administrative processing [14] within 60 days and “issue the [requested] visa,” Dkt. #7, at 1, pursuant to the Mandamus Act and [15] the APA. Defendants filed a Motion to Dismiss Pursuant to FRCP 12(b)(6) on February 26, 2024. [16] III. DISCUSSION [17] A. Legal Standard under Rule 12(b)(6) [18] In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as [19] true, and makes all inferences in the light most favorable to the non-moving party. Baker v. [20] Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). [21] To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, [22] accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 23 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, [24] 1 the court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , [2] 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to state a [3] claim to relief that is plausible on its face.” Id. at 678 . This requirement is met when the plaintiff [4] “pleads factual content that allows the court to draw the reasonable inference that the defendant [5] is liable for the misconduct alleged.” Id. The complaint need not include detailed allegations, [6] but it must have “more than labels and conclusions, and a formulaic recitation of the elements of [7] a cause of action will not do.” Twombly, 550 U.S. at 555 . Absent facial plausibility, a plaintiff’s [8] claims must be dismissed. Id. at 570 . [9] B. Analysis [10] This Court has subject matter jurisdiction over Plaintiff’s APA claim under 28 U.S.C. § 11 1331. Under the APA, a reviewing court may “compel agency action unlawfully withheld or [12] unreasonably delayed[.]” 5 U.S.C. § 706 (1). “[A] claim under § 706(1) can proceed only where [13] a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” [14] Norton v. S. Utah Wilderness All., 542 U.S. 55 (emphasis in original). “The central question in [15] evaluating ‘a claim of unreasonable delay’ is ‘whether the agency’s delay is so egregious as to [16] warrant mandamus.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 , 382 U.S. App. D.C. 120 17 (D.C. Cir. 2008) (quoting Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70,79 , 242 U.S. App. 18 D.C. 222 (D.C. Cir. 1984)). [19] For determinations of whether agency delays are unreasonable under the APA, the Ninth [20] Circuit has adopted the “TRAC” factors, a six-factor balancing test to decide whether “the [21] agency’s delay is so egregious as to warrant mandamus.” Telecomms. Rsch., 750 F.2d at 79-80 ; [22] see Vaz v. Neal, 33 F.4th 1131, 1137 (9th Cir. 2022). The factors are: [24] 1 (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 the speed [2] with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; [3] (3) delays that might be reasonable in the sphere or economic regulation are less tolerable when human health and welfare are at stake; [4] (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; [5] (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and [6] (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.” [7] Telecomms. Rsch., 750 F.2d at 80 (citations and quotations omitted). [8] The Mandamus Act, 28 U.S.C. § 1361 , provides district courts with “original jurisdiction [9] over any action in the nature of mandamus to compel an officer or employee of the United States [10] or any agency thereof to perform a duty owed to the plaintiff.” It is well-established that [11] “[m]andamus is an extraordinary remedy and is available to compel a federal official to perform [12] a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s duty is [13] nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other [14] adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998). [15] The thrust of Ms. Chang’s argument is as follows: first, she alleges that USCIS has a non16 discretionary duty, namely, issuing a final decision on her visa case, which the consular officer [17] has failed to perform. Alternatively, Ms. Chang alleges that the seven-month period from the time [18] she commenced this litigation is an unreasonable amount of time for the agency to readjudicate [19] her visa application under the TRAC factors. Lastly, Ms. Chang alleges that she is entitled to [20] equitable relief under the Due Process Clause of the Fifth Amendment, as her “right to fairness [21] in administrative adjudication” has been violated. [22] Turning first to the APA claim and the issue of adjudication, the Court finds that USCIS [23] already adjudicated Ms. Chang’s L-1B nonimmigrant visa application when it was denied by the [24] 1 consular officer on May 16, 2023, and that there is no mandatory, nondiscretionary duty to readjudicate it. See Zhou v. Chertoff, No. 08-cv-4523, 2009 WL 2246231 , at *2 (N.D. Cal. July [2] 24, 2009) (denying request for mandamus relief because the consular officer had denied the visa [3] application under § 1201(g)). Ms. Chang is essentially arguing that USCIS failed to act on her [4] visa application, but also admits that her visa application has been refused. These positions are [5] mutually exclusive. Thus, Ms. Chang has failed to overcome this initial obstacle as she is unable [6] to point to a nondiscretionary duty that the consular officer failed to perform regarding her visa [7] application. [8] Further, even assuming that there was such nondiscretionary duty to readjudicate Ms. [9] Chang’s visa application, it would not be unreasonably delayed under the TRAC factors. At the [10] outset, it is important to note that district court review of complained-of agency inaction is [11] extremely narrow in scope. Additionally, under § 706(1) of the APA, a district court can only [12] compel USCIS to take “a discrete agency action that it is required to take.” Norton v. S. Utah [13] Wilderness Alliance (“SUWA”), 542 U.S. 55, 64 (2004)). In this case, and in the visa context more [14] generally, district courts have typically held that the first two TRAC factors favor the processes [15] adopted by government agencies due to the “wide discretion in the area of immigration [16] processing” that Congress has afforded agencies as well as the relatively short length of delay. [17] Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-00397, 2020 WL 1308376 , at *8 (D.D.C. Mar. [18] 19, 2020) (citation omitted). In performing an analysis of the first TRAC factor, courts typically [19] compare the length of delay at issue to prior cases. Throw v. Mayorkas, No. 3:22-cv-05699-DGE, [20] 2023 WL 2787222 , at *4 (W.D. Wash. Apr. 5, 2023) (“Absent a congressionally supplied [21] yardstick, courts typically turn to case law as a guide.”). Ms. Chang’s unreasonable delay claim [22] is premised on a delay of seven months. However, in the immigration context, it is commonplace [23] for courts to hold that a delay of less than four years is not unreasonable. See Yavari v. Pompeo, [24] 1 No. 2:19-cv-2524, 2019 WL 6720995 , at *8 (C.D. Cal. Oct. 10, 2019) (immigration delays in excess of five, six, seven years are unreasonable, while those between three to five years are often [2] not unreasonable). Thus, the first TRAC factor favors Defendants. For the second TRAC factor, [3] courts must consider whether Congress has provided a timetable within which it expects the [4] agency to proceed. Here, there is no specific timeframe to which the USCIS or a consular officer [5] must adhere. “To the contrary, Congress has given the agencies wide discretion in the area of [6] immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153-54 (noting that a two-year [7] delay in processing an immigration visa “does not typically require judicial intervention”). [8] Further, “[a]bsent a precise statutory timetable or other factors counseling expeditious action, an [9] agency’s control over the timetable…is entitled to considerable deference.” Mexichem Specialty [10] Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015). Thus, the second TRAC factor favors [11] Defendants. The third and fifth TRAC factors focus on “the interests prejudiced by the delay,” [12] including how it impacts “human health and welfare.” TRAC, 750 F.2d at 80 . This court agrees [13] with Defendants that Ms. Chang has not asserted any kind of harm or risk of harm that does not [14] apply to every other applicant who is also dealing with the hardship of going through a visa [15] application process. Ms. Chang’s physiological symptoms of stress, while regrettable, are not [16] unique. These TRAC factors also favor Defendants. [17] The fourth TRAC factor requires an assessment of the “effect of expediting delayed action [18] on agency activities of a higher competing priority.” TRAC, 750 F.2d at 80 . Defendants argue that [19] even if every other TRAC factor favored it, courts have consistently “refused to grant [20] relief…where a ‘judicial order putting [the petitioner] at the head of the queue [would] simply [21] move [] all others back one space and produce no net gain.’” Dkt. #7, at 10 (citing Mashpee [22] Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (citation [23] omitted). This court rejects the overgeneralization that Defendants appear to posit. Defendants [24] 1 rely chiefly on a case dealing with pharmaceutical firms awaiting FDA approval, where there was no specific evidence of preferential treatment of one firm over another. Given such a scenario of [2] apparent equal treatment from a federal agency, nothing in that case supports the notion that TRAC [3] factor four could by itself overcome any other TRAC factor, let alone a combination of them. In [4] the present case, Ms. Chang’s allegations do not incline the first, second, third, or fifth TRAC [5] factors in her favor, and this is the reason why the TRAC factors together would not warrant the [6] requested relief, not because of the overly broad argument that Defendants put forth. Lastly, the [7] sixth TRAC factor remains neutral, since Ms. Chang does not allege that Defendant’s delay is [8] caused by bad faith. [9] Regarding the due process violation claim, the Court agrees with Defendants that it is [10] unclear whether Ms. Chang is alleging a violation of substantive or procedural due process. Insofar [11] as she is alleging one of the two, she has failed to provide specific facts in support of her claim. A [12] complaint must allege “more than unadorned, the-defendant-unlawfully-harmed-me accusation.” [13] Iqbal, 566 U.S. at 678. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation [14] of the elements of a cause of action will not do.’” Id. “While a plaintiff need not give ‘detailed [15] factual allegations,’ a plaintiff must plead sufficient facts that, if true, ‘raise a right to relief above [16] the speculative level.’” Varol v. Radel, 420 F. Supp. 3d 1089 , 1094 (S.D. Cal. 2019) (quoting [17] Twombly, 550 U.S. at 545 ). The Court further agrees with Defendants that Ms. Chang fails to state [18] facts that present a constitutional violation. To state a violation of either substantive or procedural [19] due process, a plaintiff must allege a deprivation of her life, liberty, or property by the government, [20] and Ms. Chang simply does not. See Kerry v. Din, 576 U.S. 86, 90 (2015). [21] // [22] // [23] // [24] 1 IV. CONCLUSION Having reviewed the relevant briefing and the remainder of the record, the Court hereby [2] finds and ORDERS that Defendants’ Motion to Dismiss pursuant to FRCP 12(b)(6), Dkt. #7, is [3] GRANTED. All of Plaintiff’s claims are DISMISSED. This case is CLOSED. [4] DATED this 25th day of June, 2024. [5] 6 A [7] RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE