RICHARD J. LEON, United States District Judge.
Plaintiffs Aaron & Emma Skalka, Evan & Jennifer Lee, Ryan & Jessica Scheel, and Robert & Heather Ayers are four American couples who want to adopt orphaned children from the country of Nepal. Plaintiff Frank Adoption Center is an organization that seeks to facilitate those adoptions. These plaintiffs ("the couples" and "FAC") have brought suit against the various components of the U.S. Government who are in charge of enforcing the immigration policy that normally allows adoptive parents of orphaned children to apply for visas on their behalf.
Currently before the Court is defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted [Dkt. # 12].
Congress gave the Department of State the authority to grant visas to orphaned children in foreign countries when parents who intend to adopt them file an application on their behalf. The application, known as an I-600 petition, requests that the orphaned child be classified as an "immediate relative" and granted a visa to permanently reside in the United States. 8 U.S.C. § 1154(a)(1)(A)(i). Parents who want to adopt from Nepal first apply to USCIS for a determination that they are fit to adopt. They then apply to the Nepalese government, which matches them with what it considers to be an orphan, issuing a "referral letter" naming the child. In order to qualify the matched child for a U.S. visa, the parents make their I-600
See 8 U.S.C. § 1101(b)(1)(F). A child is "abandoned" if the birth parent has
8 C.F.R. § 204.3(b) (first prong of definition of abandonment). The I-600 petition triggers a consular officer to conduct what is called an I-604 investigation into the veracity of the child being orphaned (i.e., verifying documentation, researching the child's age, hometown, etc.). By regulation, a consular officer must complete this investigation "in every orphan case," and "[depending on the circumstances surrounding the case, the I-604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation." 8 C.F.R. § 204.3(k)(1). The timing of such an investigation is not specified except that it must be completed "before a[n I-600] petition is adjudicated." Id. If the consular officer conducts a favorable I-604 investigation, he may approve the I-600 petition and the adoptive parents may apply for and obtain a visa for the child. If the officer determines the application is "not clearly approvable" based on his investigation, he refers it to the USCIS office in the jurisdiction. 8 C.F.R. § 204.3(k)(2). The I-604 investigation form declares that if there are "allegations or indications of fraud, child buying or other non-bona fide intent" the consular officer must "attach report and results of anti-fraud investigation to Form I-604 when complete." The USCIS office then reviews those findings and makes a final determination on the I-600 petition after providing the parents with notice and an opportunity to present contrary evidence.
Because the consular officers in Nepal were having continuous difficulty verifying reports of abandonment in the country, State and DHS jointly decided to suspend the processing of all I-600 applications for which Nepal is the home country and "abandonment" is the reason for considering the child orphaned. See First Am. Compl. ¶ 36 (investigations "routinely hindered by the unavailability of officials," and "[p]olice and orphanage officials" refused to cooperate); see also First Am. Compl., Ex. 6 [Dkt. # 11-6]; id. Ex. 2 [Dkt. # 11-2]. Essentially, those types of applications are automatically deemed "not clearly approvable" in the I-604 investigation phase, and automatically forwarded to the USCIS office in Nepal, which automatically issues a letter to the parents that the case is "administratively closed" until the suspension is lifted. The suspension went into effect in August 2010. A U.S. delegation revisited the policy in November 2014, but decided the systemic issues with false or unverifiable reports in Nepal warranted keeping the suspension in place. Id. Ex. 3, at 4
8 U.S.C. § 1154(b).
The immigration agencies move to dismiss plaintiffs' First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the Court must ascertain whether the complaint contains "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citations omitted). Although the Court must read the complaint's factual allegations in the light most favorable to the plaintiff, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court is not required to accept legal conclusions cast in the form of factual assertions, Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), and a claim that is premised on a faulty legal theory must be dismissed, "without regard to whether it is based on an out-landish legal theory or on a close but ultimately unavailing one." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In agency review of cases such as this, it is proper for the court to decide at the motion to dismiss stage whether plaintiffs have an actionable legal theory as to the requirement they allege binds the agency. See e.g., People for the Ethical Treatment of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1092-93, 1099 (D.C. Cir. 2015). The Court may even look outside the four corners of the complaint when the plaintiff pleads a specific theory for why the agency is bound, and attaches the relevant documents. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006). At bottom, the Court has been asked to resolve a purely legal question about the limits on agency discretion, and it is appropriate for the Court to settle it at this stage. See Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) ("The entire case on review is a
Plaintiffs plead a discrete failure to act on their specific visa petitions.
If the agency does have a clear duty to act, and Congress has not prescribed a deadline for the action, the question becomes whether the agency's delay is unreasonable. In re Core Commc'ns, Inc., 531 F.3d at 855. The central question in evaluating a claim of unreasonable delay is "whether the agency's delay is so egregious as to warrant mandamus." Am. Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016) (quoting In re Core Commc'ns, Inc., 531 F.3d at 855). Our Circuit has made it clear that each "unreasonable delay" case "must be analyzed according to its own unique circumstances." Id. (quoting Air Line Pilots Ass'n v. Civil Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir. 1984)). The factors a court should consider, though they are "hardly ironclad," were announced in Telecommunications Research & Action Center v. FCC ("TRAC"), 750 F.2d 70 (D.C. Cir. 1984). They include: any indication of the speed with which Congress expects the agency to proceed; the nature and extent of the interests prejudiced by delay, with particular concern for matters of "human health and welfare"; and the effect of expediting delayed action on agency activities of a competing or higher priority. See TRAC, 750 F.2d at 80; see also Am. Hosp. Ass'n, 812 F.3d at 189.
None of these standards for assessing agency inaction, nor any of the cases applying them, are a particularly good fit for a case like this one where the agency has decided, for a considered policy reason, to suspend processing what it admits are required adjudications on visa petitions. Indeed, the agencies promise to process the petitions as soon as doing so would be reliable and efficient. This is the very type of prioritizing and balancing of resources our Circuit Court acknowledged agencies are uniquely situated to calculate. In the end, however, the dispositive question is whether the suspension is both lawful and reasonable. Unfortunately for the plaintiffs, it is both!
Neither of plaintiffs textual citations—to the statute at 8 U.S.C. § 1154(b) and the regulation at 8 C.F.R. § 204.3(k)—provide a sufficient legal basis for the Court to conclude that the agencies are unjustified in suspending the visa petitions here until such time as the information from the Nepalese government is sufficiently reliable to satisfy our agencies that the statutory requirements set by Congress are actually met. The use of "shall" in the statute relates to the Secretary's duty when, and if, the requirements of the statute are met. And the regulatory requirement to conduct an abandonment investigation merely prohibits issuing an orphan visa prior to an investigation taking place. It does not require the agencies to undertake these investigations on a particular regularized basis. In other words, it does nothing to limit the inherent discretion that the agencies have to manage the procedures for handling the large number of visa petitions they receive. Cf Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (decision not reviewable when it "involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise," such as "the procedures it adopts for implementing [a] statute"). Moreover, the regulations themselves prescribe careful procedures for ensuring the accuracy of abandonment investigations. Put simply, it cannot be said that the existing regulations as a whole "require" the agencies to investigate an individual case to the point of complete satisfaction when the officers have genuine doubt about the reliability of their source. To say the least, evaluating the reliability of the foreign government's information is critical to exercising their discretionary duty. As such, the agency action here has not been unlawfully withheld.
The final, related, question is whether the delay in question is unreasonable. Applying the TRAC factors, I find that it is not. First, there is no deadline or timeframe prescribed by Congress for these investigations. To the contrary, Congress has given the agencies wide discretion
Next, I recognize that the nature of plaintiffs' interests, and that of any orphans in Nepal who would be adopted, is of the most sensitive kind and most certainly involves "human health and welfare." The agencies must therefore prioritize these cases consistent with the sense of urgency one would expect when familial interests at stake. But the last TRAC factor surely has a mitigating effect on that sense of urgency here. Expediting the agencies' delayed action in this situation would certainly have the effect of harming the "competing or higher priority" of accuracy. To say the least, accurately adjudicating whether a child has truly been abandoned by his or her parents is the first priority for the agency in this situation. Compelling agency action otherwise would insinuate the Court into the agencies' judgment about whether they could accurately adjudicate these cases. That sort of judgment is at the very heart of the expertise that should be exercised by a U.S. Government official who is intimately familiar with the facts in Nepal and not a District Court judge who is ordering agency action in Washington, D.C. Small wonder that every other country in the world appears to have likewise suspended orphan adoptions in Nepal!
Finally, I can't help but note that although it has been more than six years since the suspension went into effect, it has only been about two years since it was most recently reviewed by a U.S. delegation to Nepal. It has been even less time since the couples who are plaintiffs in this case submitted the petitions that should trigger investigation. First Am. Compl. ¶¶ 36, 44, 52, 57; id. Ex. 3, at 4. In my review of the comparable cases, a delay of this length does not typically require judicial intervention. Compare Debba v. Heinauer, 366 Fed.Appx. 696 (8th Cir. 2010) (10 years to adjudicate a permanent resident application not unreasonable); In re City of Virginia Beach, 42 F.3d 881 (4th Cir. 1994) (four and a half years not unreasonable in an adjudication affecting health and human welfare); Kokajko v. FERC, 837 F.2d 524 (1st Cir. 1988) (a five year delay might be close to the unreasonable threshold because delay was "unexplained"). Moreover, as long as the agencies are regularly revisiting the question whether they can rely on Nepalese sources to provide accurate information, then they are not delaying materially longer than necessary. The agencies have represented, and the Court has no reason to doubt, that when the situation in Nepal is improved to the point of reliability, the couples' petitions will be reviewed with due haste. Accordingly, there is no plausible cause of action at this time under either the APA or the Mandamus Act because the agencies'
For all of the foregoing reasons, the Court GRANTS defendants' Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted. An Order consistent with this decision accompanies this Memorandum Opinion.
