Ashtari v. Pompeo

                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                             )
SANAZ ASHTARI, et al.,                       )
                                             )
       Plaintiffs,                           )
                                             )
               v.                            )    Case No. 19-cv-3797 (APM)
                                             )
MIKE POMPEO, in his official capacity        )
as Secretary of State, et al.,               )
                                             )
       Defendants.                           )
_________________________________________ )
                              MEMORANDUM OPINION AND ORDER

                                                         I.

         On February 18, 2015, Plaintiff Sanaz Ashtari, a U.S. citizen residing in Texas, initiated

the legal process required to bring her Iranian parents, Plaintiffs Abdollah Ashtari and Saedeh

Mozaffari, to the United States. 1 Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 61, 79. This case

concerns the delay in processing their visa applications. Although Ms. Mozaffari’s visa was

approved almost four years later, shortly after the initiation of this lawsuit, 2 see Defs.’ Mot. to

Dismiss, ECF No. 9 [hereinafter Defs.’ Mot.], Decl. of Chloe Dybdahl, ECF No. 9-2 [hereinafter

Dybdahl Decl.], ¶ 4, Mr. Ashtari’s application remains in limbo to this day

, id. ¶ 5.

         Mr. Ashtari’s visa application was sent to the U.S. Embassy in Ankara, Turkey, for

processing, see Compl. ¶ 61, where he appeared for a visa interview on August 24, 2016

, id. at ¶ 63;

Dybdahl Decl. ¶ 5. Five days after his interview, Mr. Ashtari was notified by email that his

“‘visa case ha[d] been refused under Section 221(g) of the U.S. Immigration and Nationality Act


1
  The Immigration and Nationality Act (“INA”) provides that a U.S. citizen who wishes to bring a foreign national
relative to the United States must file a Petition for Alien Relative (Form I-130) with the United States Customs and
Immigration Service (“USCIS”). 8 U.S.C. § 1154; 8 C.F.R. § 204.1(a)(1).
2
  The case was voluntarily dismissed as to Ms. Mozaffari on February 25, 2020. See Notice of Voluntary Dismissal,
ECF No. 8.
[“INA”]’ and that ‘further administrative processing’ of his application was required.” Compl.

¶ 64. He was told that process, “on average[,] takes four months.”

Id. Nearly a year

later, while Mr. Ashtari’s application was “still undergoing [ ] required

administrative processing,”

id. ¶ 65,

President Trump issued Presidential Proclamation 9645,

entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the

United States by Terrorists or Other Public-Safety Threats.” 82 Fed. Reg. 45,161 (Sept. 24, 2017)

[hereinafter Proclamation]. Proclamation 9645 bans citizens of eight countries, including Iran,

from entering the United States.

Id. § 2. Although

a blanket ban, the Proclamation does provide

that “a consular officer . . . may, in [his] discretion, grant waivers on a case-by-case basis to permit

the entry of foreign nationals for whom entry is otherwise suspended or limited . . . .”

Id. § 3(c). “A

waiver may be granted only if a foreign national demonstrates to the consular officer’s . . .

satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry

would not pose a threat to the national security or public safety of the United States; and (C) entry

would be in the national interest.” Proclamation § 3(c)(i). The Proclamation also requires the

Secretary of State and the Secretary of Homeland Security to “adopt guidance addressing the

circumstances in which waivers may be appropriate for foreign nationals seeking entry as

immigrants or nonimmigrants.”

Id. Pursuant to that

adopted guidance, on March 22, 2018, the U.S. Embassy in Ankara

requested that Mr. Ashtari complete form DS-5535, titled “Supplemental Questions for Visa

Applicants.” Compl. ¶ 69. Several weeks later, Ms. Ashtari checked on the status of her father’s

application, and was informed that “[a] consular officer [had] reviewed [his] case with its

supporting documents and proposed a waiver for [him].”

Id. ¶ 71.

“Therefore,” the email

explained, “[his] case has been under administrative process for further evaluation.”

Id. “We are 2

processing [his] case as quickly as possible,” the Embassy promised, noting that the process “may

take months.”

Id. As the months

passed, Ms. Ashtari would periodically inquire as to the status

of her father’s application with the Embassy in Ankara and at one point even reached out to her

Senator for help.

Id. ¶¶ 71–73.

Each time, she was given a variation of the same response—that

Mr. Ashtari’s case was “still undergoing the required administrative process,” and a decision on

his waiver was still pending.

Id. ¶¶ 72, 74.

As of the date the Complaint was filed, the online

status tracker for Mr. Ashtari’s application reflected that his “case [was] [ ] undergoing necessary

administrative processing,” and that it “c[ould] take several weeks.” Compl. ¶ 75; see also

id., Ex. E, ECF

No. 1-5. But at that point, it had already been over three years since Mr. Ashtari’s

case was “refused,” Compl. ¶ 64, and over a year and a half since he submitted the Supplemental

Questions in support of his waiver determination

, id. ¶ 69.

       Tired of waiting, Plaintiffs initiated this action on December 20, 2019, seeking a writ of

mandamus or an order under the Administrative Procedure Act (“APA”) compelling unreasonably

delayed agency action. See

id. ¶¶ 141–165.

Defendants then filed a motion to dismiss under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defs.’ Mot, Mem. of P. & A. in Supp.

of Defs.’ Mot. to Dismiss, ECF No. 9-1 [hereinafter Def.’s Mem.]. Plaintiffs oppose Defendants’

motion and have cross moved for summary judgment. See Pls.’ Cross Mot. for Summ. J. & Opp’n

to Defs.’ Mot. to Dismiss, ECF No. 11, Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss & in Supp.

of Pls.’ Cross Mot. for Summ. J., ECF No. 11-2 [hereinafter Pls.’ Mem.]. For the reasons explained

below, the court denies both motions.




                                                 3
                                                   II.

                                                   A.

        Defendants’ motion to dismiss invokes the legal standards for dismissal under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6).           With regard to the former, “[t]here is a

presumption against federal court jurisdiction, and the burden is on the party asserting the

jurisdiction . . . to establish that the [c]ourt has subject matter jurisdiction over the action.” Logan

v. Dep’t of Veterans Affairs, 

357 F. Supp. 2d 149

, 153 (D.D.C. 2004) (citing McNutt v. Gen. Motors

Acceptance Corp., 

298 U.S. 178

, 182–83 (1936)). When reviewing a motion to dismiss under

12(b)(1), courts “assume the truth of all material factual allegations in the complaint and ‘construe

the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the

facts alleged.’” Am. Nat’l Ins. v. FDIC, 

642 F.3d 1137

, 1139 (D.C. Cir. 2011) (quoting Thomas v.

Principi, 

394 F.3d 970

, 972 (D.C. Cir. 2005)).

        To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon

which relief can be granted.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544

, 552 (2007). Although

“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion

, id. at 555,

“a

complaint must contain sufficient factual matter, [if] 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 

Twombly, 550 U.S. at 570

).

                                                   B.

        Plaintiffs’    motion      implicates     the     standard      for    summary        judgment.

Although Rule 56 requires a court to grant summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law[,]” Fed. R. Civ. P. 56(a), “in APA cases, the summary judgment standard functions slightly



                                                   4
differently, because the reviewing court generally . . . reviews the agency’s decision as an appellate

court addressing issues of law.” Pol’y & Rsch., LLC v. United States Dep’t of Health and Hum.

Servs., 

313 F. Supp. 3d 62

, 74 (D.D.C. 2018) (cleaned up). Stated another way, “[t]he entire case

on review is a question of law, and only a question of law.” Marshall Cty. Health Care Auth. v.

Shalala, 

988 F.2d 1221

, 1226 (D.C. Cir. 1993). Accordingly, “whether the issue is one of

reviewability or otherwise, the court must limit its review to the administrative record and the facts

and reasons contained therein to determine whether the agency’s action was consistent with the

relevant APA standard of review.”

Id. (cleaned up). Where

a plaintiff seeks to “compel agency

action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), the “claim . . . can

proceed only where [the] plaintiff asserts that an agency failed to take a discrete agency action that

it is required to take,” Kaufman v. Mukasey, 

524 F.3d 1334

, 1338 (D.C. Cir. 2008)

(quoting Norton v. S. Utah Wilderness All., 

542 U.S. 55

, 63 (2004) (emphases in Norton)).

                                                 III.

                                                 A.

       The court first addresses Defendants’ two intertwined jurisdictional arguments. They

argue that because “a consular officer already denied [Mr.] Ashtari’s visa application,” Defs.’

Mem. at 1, both the mootness and consular nonreviewability doctrines bar judicial review of

Plaintiffs’ claims

, id. at 1–2;

see Saavedra Bruno v. Albright, 

197 F.3d 1153

, 1164 (D.C. Cir. 1999)

(“This circuit has recognized, as has every circuit to consider the issue, that the courts are without

authority to displace the consular function in the issuance of visas.” (internal quotation marks

omitted)); see also Conservation Force, Inc. v. Jewell, 

733 F.3d 1200

, 1204 (D.C. Cir. 2013)

(“Federal courts lack jurisdiction to decide moot cases because their constitutional authority




                                                  5
extends only to actual cases or controversies.”). 3 But these arguments mischaracterize the crux of

Plaintiffs’ Complaint. Plaintiffs do not challenge the refusal of Mr. Ashtari’s visa application in

the first instance. As nearly every other judge in this District who has considered this issue on

almost identical facts has observed, what Plaintiffs really seek here is to compel a decision on

Mr. Ashtari’s waiver eligibility. See, e.g., Bagherian v. Pompeo, 

442 F. Supp. 3d 87

, 92 & n.3

(D.D.C. 2020) (“Although her complaint and briefing often frame [plaintiff’s] requested relief as

adjudication of her visa application, the Court thinks it abundantly clear from context that what

[she] is really seeking is adjudication of her waiver eligibility.”); Moghaddam v. Pompeo, 

424 F. Supp. 3d 104

, 113–14 (D.D.C. 2020) (construing the plaintiff’s request for adjudication of her

visa application as a request for adjudication of her “waiver eligibility, which [she] view[ed] as

part of the overall visa application process”). But see Joorabi v. Pompeo, No. 20-cv-108, 

2020 WL 2527209

(D.D.C. May 17, 2020). Because a decision on Mr. Ashtari’s waiver eligibility

remains pending, Plaintiffs’ claims are neither moot nor barred by the doctrine of consular

nonreviewability. See Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to

the U.S. v. Kerry, 

168 F. Supp. 3d 268

, 290 (D.D.C. 2016) (“[T]he doctrine of consular

nonreviewability is not triggered until a consular officer has made a decision with respect to a

particular visa application.”); see also Didban v. Pompeo, 

435 F. Supp. 3d 168

, 174 (D.D.C. 2020)

(“[W]hile the doctrine of consular non-reviewability would almost certainly bar this Court from

evaluating a consular officer’s denial of a waiver, it does not prevent the Court from considering

Plaintiffs’ claim that the Government has unreasonably delayed rendering a decision.”).




3
  As other courts in this District have noted, “[t]here is some ambiguity as to whether the doctrine of consular non-
reviewability” is technically a matter of jurisdiction or is instead more properly classified as a merits matter. Didban
v. Pompeo, 

435 F. Supp. 3d 168

, 173 n.2 (D.D.C. 2020); see also Bagherian v. Pompeo, 

442 F. Supp. 3d 87

, 92 n.2
(D.D.C. 2020). Because the court concludes that the doctrine does not apply here, there is no need to resolve that
issue.

                                                           6
                                                        B.

        Defendants next argue that Plaintiffs have not stated a claim under the APA. At the

threshold, they contend that “the waiver program is governed exclusively by the Proclamation—a

presidential action that is not subject to the APA”—and therefore the reasonableness of how long

the State Department has taken to process a waiver is not reviewable. Defs.’ Mem. at 10–11. But,

as the court observed in Moghaddam, that argument “overlook[s] several important 

points.” 424 F. Supp. 3d at 120

. First among them is that “although ‘the APA does not expressly allow review

of the President’s actions,’ Franklin v. Massachusetts, 

505 U.S. 788

, 801 (1992), Plaintiffs here

do not challenge the President’s actions[,] and instead challenge agency adherence to the

Proclamation itself and agency guidance.” 

Moghaddam, 424 F. Supp. 3d at 120

. 4 When federal

agencies set rules for themselves, “even gratuitous procedural rules that limit otherwise

discretionary actions,” they must adhere to them. Steenholdt v. FAA, 

314 F.3d 633

, 639 (D.C. Cir.

2003) (applying the “Accardi doctrine” as established in United States ex rel. Accardi v.

Shaughnessy, 

347 U.S. 260

(1954)); see also Padula v. Webster, 

822 F.2d 97

, 100 (D.C. Cir. 1987)

(“It is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily

adopted, binding policies that limit its discretion.”). “In fact, in the immigration context, courts

have found that the Accardi doctrine’s ambit is not limited to rules attaining the status of formal

regulation, and that it can be applied to internal agency guidance.” 

Moghaddam, 424 F. Supp. 3d at 120

–21 (cleaned up) (citing Montilla v. INS, 

926 F.2d 162

, 167 (2d Cir. 1991)).




4
  Although the D.C. Circuit has “has not clearly determined whether action taken pursuant to the Proclamation is
reviewable,” 

Moghaddam, 424 F. Supp. 3d at 120

, it has held that agency regulations promulgated pursuant to
executive orders are reviewable under the APA, see Chamber of Com. v. Reich, 

74 F.3d 1322

, 1326–27 (D.C. Cir.
1996); cf. Tulare Cnty. v. Bush, 

306 F.3d 1138

, 1143 (D.C. Cir. 2002) (implying that challenge to agency action
pursuant to presidential proclamation might have been reviewable under APA if plaintiffs had alleged such claim with
“sufficient specificity”).

                                                         7
       The question then is whether Plaintiffs have alleged facts sufficient to plausibly establish

that Defendants were bound by policies or internal agency guidance requiring them to decide

Mr. Ashtari’s waiver eligibility. They have. Included in their pleading is State Department

guidance, intended to supplement its Foreign Affairs Manual, entitled “Operational Q&A on P.P.

9645 Travel Restrictions.” Compl., Ex. A., ECF No. 1-1. Regarding waivers, the guidance

unequivocally states that each visa applicant who qualifies for a waiver under Section 3(c) of the

Proclamation “must be considered for a waiver.”

Id. at 2.

And regarding visa refusals, it provides

that “before [a consular officer] refuse[s] an applicant under the [Proclamation], [he] must

determine whether the applicant may qualify for a waiver,” among other specific procedural

requirements.

Id. at 4.

Thus, while Defendants may be right that “the decisions to grant or deny

a waiver are committed [ ] to the discretion of the executive branch,” see Defs.’ Mem. at 11,

Plaintiffs have at least plausibly shown that the agency action they seek to compel—a decision on

the waiver itself—is not, see, e.g., 

Moghaddam, 424 F. Supp. 3d at 121

(finding, based on

government pronouncements, counselor “officers do not have the discretion to never act on a

waiver application”); Thomas v. Pompeo, 

438 F. Supp. 3d 35

, 43 (D.D.C. 2020) (same).

       Relatedly, Defendants assert that the State Department’s delay in making a waiver decision

is not subject to the APA because Section 9(c) of the Proclamation disclaims the creation of “any

right or benefit, substantive or procedural” against the United States or any of its agencies. Defs.’

Mem. at 11. But, again, Plaintiffs here are not challenging the Proclamation, but the State

Department’s delay in determining whether Mr. Ashtari qualifies for a waiver. That inaction is

subject to and reviewable under the APA. See 

Thomas, 438 F. Supp. 3d at 43

(holding that, just

because the Proclamation “‘is not intended to and does not, create any right or benefit,’ see




                                                 8
Proclamation at Sec. 9(c), does not mean that the defendants have completely unchecked

discretion”).

         Next, Defendants again invoke the doctrine of consular nonreviewability, Defs.’ Mem. at

9 (citing 5 U.S.C. § 706(2)), and additionally contend that Plaintiffs’ claims are unreviewable

because they involve “agency action [that] is committed to agency discretion by law,”

id. at 10

(quoting 5 U.S.C. § 701(a)(2)). As already noted, the consular nonreviewability doctrine does not

apply to the withholding of a waiver determination.                      Furthermore, as discussed, the State

Department has adopted policies that commit the agency to deciding a qualified person’s eligibility

for a waiver. The agency “do[es] not have the discretion to never act on a waiver application.”

Moghaddam, 424 F. Supp. 3d at 121

(emphasis added); accord 

Thomas, 438 F. Supp. 3d at 43

.

         Finally, the fact that the agency’s policies reflect no specific timeframe to act on waivers

is not fatal to a claim under the APA. The APA itself requires agencies to act within a reasonable

time. See 5 U.S.C. §§ 555(b), 706(1). In considering whether agency delay is unreasonable, courts

in this Circuit apply the six factors articulated in Telecommunications Research & Action Center

v. FCC, 

750 F.2d 70

, 79–80 (D.C. Cir. 1984) (TRAC). 5 Thus, “[r]esolution of a claim of

unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the

particular facts and circumstances before the court.” Mashpee Wampanoag Tribal Council, Inc.

v. Norton, 

336 F.3d 1094

, 1100 (D.C. Cir. 2003).


5
  The TRAC factors are: “(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 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 lassitude in order to hold that agency action is unreasonably
delayed.’” In re United Mine Workers of Am. Int’l Union, 

190 F.3d 545

, 549 (D.C. Cir. 1999) (quoting 

TRAC, 750 F.2d at 80

).



                                                           9
       The court is aware that several other judges in this District have gone on to apply the TRAC

factors in similar cases, and to find—as a matter of law—that an approximately two-year delay in

processing visa waivers is not unreasonable.          See, e,g, 

Didban, 435 F. Supp. 3d at 175

–

77; 

Bagherian, 442 F. Supp. 3d at 93

–96; Ghadami v. U.S. Dep’t of Homeland Sec., No. 19-cv-

397-ABJ, 

2020 WL 1308376

, at *7–9 (D.D.C. Mar. 19, 2020); Sarlak v. Pompeo, No. 20-cv-35-

BAH, 

2020 WL 3082018

, at *4–6 (D.D.C. June 10, 2020). However, without wading into case-

by-case comparisons, this court is satisfied that the claims advanced here meet Rule 12(b)(6)’s

plausibility standard. Plaintiffs have incorporated into their Complaint congressional testimony

and internal policy guidance showing the State Department, in June and September 2019, touted a

new electronic vetting system that gives it the ability to make waiver determinations in a matter of

days following interviews. See Pls.’ Mot., Ex. B, Testimony of Edward Ramotowski, Deputy

Assistant Secretary, Bureau of Consular Affairs, U.S. Dep’t of State, Sep. 24, 2019, ECF No. 11-

4 [hereinafter Pls.’ Mot. Ex. B], at 3 (“The new enhanced review is automated . . . and [i]t is now

possible that many cases may be issued within days of the application . . . .”); see also Compl., Ex.

K, ECF No. 1-11 [hereinafter Compl. Ex. K], at 1–2 (explaining policy adjustments “[i]n light of

significant enhancements to automated vetting systems over the past 18 months”). By the State

Department’s own admission, this new vetting system is specifically designed to address the

national-security prong of Proclamation 9645’s waiver criteria, see Pls.’ Mot. Ex. B at 3; Compl.

Ex. K at 1, which Defendants claim takes the longest to complete, see Defs.’ Mem. at 3. These

facts make it plausible that Mr. Ashtari’s waiver determination has been unreasonably delayed. It

is certainly worthy of further factual development.




                                                 10
                                                  C.

       By the same token, although Plaintiffs have come forward with facts that are undisputed,

the court declines to enter summary judgment in their favor on the present record. Notably,

Defendants claim that there are “over 14,000 other visa applicants” awaiting waiver

determinations. Defs.’ Mem. at 1. The D.C. Circuit has counseled that a court should not compel

agency action where the result would merely move a plaintiff ahead in line at the expense of others.

See In re Barr Lab’ys, Inc., 

930 F.2d 72

, 75 (D.C. Cir. 1991) (“[A] judicial order putting [plaintiff]

at the head of the queue simply moves all others back one space and produces no net gain.”); see

also 

Mashpee, 336 F.3d at 1101

(holding that “the district court erred by disregarding the

importance of there being ‘competing priorities’ for limited resources”). And, based on the limited

facts before the court, it is not entirely clear that Plaintiffs seek anything more than a “judicial

reordering[] of agency priorities.” Bagherian, 

2020 WL 674778

, at *6 (cleaned up).

       Ultimately, the question of whether the State Department has taken too long to process

Mr. Ashtari’s waiver is one that requires the court to “examine ‘the facts of [the] particular case’

before it.” 

Mashpee, 336 F.3d at 1102

(quoting Midwest Gas Users Ass’n v. FERC, 

833 F.2d 341

,

359 (D.C. Cir. 1987)). Whether the delay satisfies the “‘rule of reason’ . . . depend[s] in large part,

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

and the resources available to the agency.”

Id. The government will

have to address these factors

when it moves for summary judgment or risk having judgment entered in Plaintiffs’ favor.

Accordingly, the court denies Plaintiffs’ motion for summary judgment.

                                                  D.

       Finally, because the court finds that Plaintiffs have stated a claim under the APA, it need

not address Plaintiffs’ mandamus claim at this time. Mandamus relief is only available when



                                                  11
“there is no other adequate remedy available to plaintiff.” Fornaro v. James, 

416 F.3d 63

, 69

(D.C. Cir. 2005) (internal quotation marks omitted). For present purposes, the court is satisfied

that the APA supplies such a remedy.

                                              IV.

       For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 9, and Plaintiffs’

Cross-Motion for Summary Judgment, ECF No. 11, are denied.




Dated: October 23, 2020                                    Amit P. Mehta
                                                    United States District Court Judge




                                               12
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