BOKHARI v. BITTER

NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY QAMAR MUNIR BOKHARI, Civil Action No. 23-01947(JKS)(JSA) Plaintiff, WHEREAS OPINION v. RENA BITTER, et al., January 22, 2024 Defendants. SEMPER, District Judge. THIS MATTER having come before this Court upon the filing of Defendants Rena Bitter, Andrew Schofer, and Antony Blinken’s (“Defendants”) Motion to Dismiss Plaintiff Qamar Munir Bokhari’s (“Plaintiff”) Complaint, (ECF 1.), pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), (ECF 15.), and the Court having considered the Complaint and Defendants’ and Plaintiff’s submissions, and having reached its decision without oral argument pursuant to Rule 78; and WHEREAS Plaintiff’s Complaint alleges claims that stem from his daughter and granddaughter’s pending visa petitions. Plaintiff’s Complaint asserts causes of action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (1), § 555(b), the Mandamus Act, 28 U.S.C. § 1361 , and the Due Process Clause under the Fifth Amendment (see ECF 1; ECF 11.). Plaintiff requested that the court mandated the processing of the pending visa petitions (ECF 1.); and WHEREAS the federal question statute confers jurisdiction on the district courts over actions “arising under” federal law. 28 U.S.C. § 1331 . Congress allows courts to review claims of unreasonable delay under the APA. 5 U.S.C. § 706 (1). This Court can “compel action unlawfully withheld or unreasonably delayed.” Id. However, this court may compel an agency to “take action upon a matter, without directing how it shall act.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). The State Department has discretion regarding visa interview scheduling, but the APA requires agencies to act on matters presented to them within a “reasonable time.” 5 U.S.C. § 555 (b); and WHEREAS the Plaintiff’s Mandamus Act claim is subsumed by his APA claim. The APA authorizes actions for a mandatory injunction to enforce compliance with its requirements, 5 U.S.C. § 703 , making the Mandamus Act claim duplicative. Thompson v. U.S. Dep’t of Labor, 813 F.2d 48 , 52 (3d Cir. 1987); see also Mutasa v. U.S.C.I.S. 531 F.Supp.3d 888 , 893 n.4 (D.N.J. Mar. 31, 2021); and WHEREAS Plaintiff’s Complaint fails to set forth a short and plain statement of his claims adequately alleging unreasonable delay in scheduling the visa interview. (ECF 1.) The facts alleged in the Complaint are insufficient to support a claim entitling Plaintiff to relief. See Fed. R. Civ. P. 8(a)(2) (providing that an adequate complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that although Rule 8 does not require detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (explaining that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level”); and WHEREAS Congress granted rulemaking authority for the granting or refusal of visas to the Secretary of Homeland Security, directing him to exercise this authority through the Secretary of State. 22 U.S.C. § 3927 . The Secretary of State has discretionary authority on the form and manner for making a visa application. 8 U.S.C. § 1202 (a). The APA requires agencies including the Department of State to render decisions “within a reasonable period of time.” 5 U.S.C. § 555 (b). Under the APA, courts may “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706 (1). However, “claim[s] under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). The Third Circuit assesses unreasonable delay under the APA pursuant to Oil, Chem: First, the court should ascertain the length of time that has elapsed since the agency came under a duty to act. Second, the reasonableness of the delay should be judged in the context of the statute authorizing the agency’s action. Third, the court should assess the consequences of the agency’s delay. Fourth, the court should consider any plea of administrative error, administrative inconvenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources. Oil, Chem. & Atomic Workers Union v. Occupational Safety & Health Admin., 145 F.3d 120, 123 (3d Cir. 1998) (citations omitted); and WHEREAS Plaintiff’s daughter’s case with the NVC became “Documentarily Qualified” in March 2021 and remains pending for interview scheduling. There is “‘no per se rule as to how long is too long’ to wait for agency action,” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004), but “[d]istrict courts have generally found the immigration delays in excess of five, six, seven years are unreasonable, while those between three to five years are often not unreasonable.” Sarlak v. Pompeo, 2020 WL 3082018 , at *6 (D.D.C. Jun. 10, 2020). The Court recognizes the personal anguish this delay has caused Plaintiff. However, Congress granted the State Department wide discretion in adjudicating visas. 8 U.S.C. § 1202 (a). Accordingly, 5 U.S.C. § 706 (1) does not entitle Plaintiff relief in this matter; and WHEREAS Plaintiff fails to state a claim for relief under the Due Process Clause of the Fifth Amendment. Plaintiff is not entitled to visa adjudication as a matter of right and therefore has no claim of entitlement to a liberty or property interest. Shukhrat v. Sec’y, U.S. Dep’t of Homeland Sec., 634 F. App’x 880, 884 (3d Cir. 2015); therefore, IT IS, on this 22nd day of January 2024, ORDERED that Plaintiff’s Complaint is DISMISSED without prejudice for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). An appropriate order follows. /s/ Jamel K. Semper . HON. JAMEL K. SEMPER United States District Judge Orig: Clerk cc: Parties Jessica S. Allen, U.S.M.J.