1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


### BAKTASH VAFAEI , Plaintiff , v. U.S. CITIZENSHIP & IMMIGRATION SERVICES , et al. , Defendant s
. Civil Action No. 22

- 1608 ( CKK)

MEMORANDUM OPINION ( March 2 1 , 202 4 ) On June 7, 2022 , Plaintiff Baktash Vafaei filed a [1] Complaint for Mandamus and Declaratory Judgment (the “Complaint” or “Compl.”), seeking a judgment from the Court compelling Defendants U.S. Citizenship & Immigration Services (“USCIS”), USCIS D irector Ur Jaddou, Secretary of Homeland Security Alejandro Mayorkas, and USCIS Chief Alissa Emmel (collectively, the “Defendants”) to process his I

- 526 visa petition

. Plaintiff seeks relief under the Administrative Procedure Act ( “A PA ”), 5 U.S.C. §§ 555, 706, and the Mandamus Act, 28 U.S.C. § 1361, based on allegati ons that Defendants have unr easonabl y delayed the adjudication of his petition. Pending b efore the Court is Defendants’ [5] Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)( 6) (“Rule 12(b)(6)”). Plaintiff opposes this motion. See Pl. ’ s Resp., ECF
No. 6. Upon review of the pleadings, 1 the relev ant legal authority, and the record as a whole, the

1 The Court’s consideration has focused on the following:
• Plaintiff’s Complaint (“Compl.”), ECF No. 1;
• Defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss (“Defs.’ Mot.”), ECF No. 5

- 1;
• P laintiff’s Response to Defen dants’ Motion to Dismiss (“Pl.’s Resp.”), ECF No. 6;
• Defendants’ Reply in Further Support of Defendants’ Motion to Dismiss (“Defs.’ Reply”), ECF No. 7; and

• Defendants’ Notice of Supplemental Authority (“Defs.’ Notice”), ECF No

. 8.2 Court shall GRANT Defendants’ [5] Motion to Dismiss and DISMISS Plaintiff ’ s [1] Complaint for Mandamus and Declaratory Judgment.
I. B ACKGROUND This case concerns the EB

- 5 Immigrant Investor Program, which permits foreign investors to enter the United States “for the purpose of engaging in a new commercial enterprise” that meets certain criteria. 8 U.S.C. § 1153(b)(5)(A). To qualify, the invest ment must “create full

- time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in th e United States (other than the immigrant and the immigrant’ s spouse [or children]).” Id. § 1153(b)(5)(A)(ii). The investment must be at or above a certain monetary amount. Id. § 1153(b)(5)(C). Aside from creating jobs directly by hiring employees, for eign investors can invest in a “regional center” designated by
USCIS that is designed to create jobs indirectly through economic growth. See 8 C.F.R. § 204.6(m)

. To obtain lawful permanent resident status through the EB

- 5 program, a foreign investor must file a Form I

- 526 petition with USCIS

. Id. § 204.6(a). I f USCIS determines that the foreign investor meets the EB

- 5 requirements, it will approve the petition

. See , e.g. , Nohria v. Renaud , No. 20

- cv - 2085, 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021) (BAH) (describing I

- 526 process). Once the I

- 526 petition is approved by USCIS, the applicant must still wait for a visa to become available, which, as acknowledged by the D.C. Circuit, “may take years.” Mirror Lake Vill., LLC v. Wolf , 971 F.3d 373, 375 (D.C. Cir. 2020); see also Nohria , 2021 WL 950511, at *2 (“Su ccessful adjudication and approval of an I

- 526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa.”).3 Congr ess designed the Regional Center Program as a “ pilot ” program in 1992, which it has

“ periodically reautho rized. ” Da Costa v. Imm igr. Inv. Pro gram Off. , 80 F. 4th 330, 337 (D.C. Cir.
2023 ). The program ’ s s tatutory authorization, however, expired on July 1, 2021. I d. This expiration of statutor y authorizati on resulted in a nine

- month lapse until March 2022, when Congress pas sed the EB

- 5 Reform and Integrity Act of 2022, extending the program ’ s authorization through September 2027. Id. ; see Pub. L. No. 117

- 103, Div. BB, § 103 , 136 Stat. 1070, 1075 (2022). During this nine

- month period from July 20 21 to Marc h 2022, USCIS “ p aused adjudicating I

- 526 pe titions. ” Da Costa , 80 F. 4th at 338; Defs. ’ Mot. at 14 ( “ USCIS placed pending I

- 526 petitions on hold during the su nset of the statutory authorization [.] ” ). Plaintiff Baktash Vafaei is a citizen and resident of Germany. Compl. ¶ 7. His country of birth is Iran. Pl. ’ s Resp. at 5. On November 8, 2019, Plaintiff invested $500,000 in CMB Infrastructure Inv estment Gro up 71, LP, a new commercial enterprise formed to accept up to $27.5 million from EB

- 5 investors “ fo r the development and construction of a housing complex ” for university students in Seattle, Washington. Compl. ¶ ¶ 22

– 23. Shortly t her eafter, on November 20, 2019, Plaintiff filed a I

- 526 p etition with USCIS

. Id. ¶ 24. Since November 2019, Plaintiff’s petition has been a waiting adjudication with USCIS. Id. ¶ 26. Plaintiff filed this lawsuit in June 2022

. See generally id. He alleges that the delay in adjudicating his I

- 526 petition has caused him to “ suffer[] a continued harm ” and “ severely prejudi ces [his] interests both financially and with respect to his immigration goals. ” Id. ¶¶ 27, 68. Plaintiff argues that Defendants ’ delay in adjudic ation is unreasonable under th e Mandamus Act and the APA

. I d. ¶¶ 56

– 74

.4 II. LEGAL STANDARD Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint is not su fficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enha ncement.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557 (2007)). To survive a Rule 12(b)(6) motion , a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly , 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the rea sonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. “ [T]he Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Nat’l Postal Prof’l Nur ses v. U.S. Postal Serv. , 461 F. Supp. 2d 24, 27 (D.D.C. 2006) (PLF). In d etermining whether a complaint survives a Rule 12(b) (6) motion, the Court “ may consider 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. ” P alakuru v. Ren aud , 521 F. Supp. 3d 46, 49 (D.D.C. 2021) (TNM) (quotation cleaned up) (quot ing Trudeau v. FT C , 456 F.3d 178, 183 (D.C. Cir. 2006)) . The Court may take judicial notice of information p ublished on official public websites of government ag enci es. Devani v. U.S. Citizen sh ip & Immi gr . Servs. , No. 22

- cv - 01932, 2023 WL 2913645, at * 3 n.1 (D.D.C. Apr. 12, 2023) (DLF) (citing Arab v. Blinken , 600 F. Supp. 3d 59, 63, n.1 (D.D.C. 2022) (BAH)).
III. DISCUSSION Plaintiff argue s that Defendants’ delay in a d judicating his I

- 526 petit ion is unreasonable under the APA and the Mandamus Act

. Compl. ¶ ¶ 56

– 74

. Courts review clai ms of unreasonable5 delay in processing immigration petitions according to the “same [standard] under both § 706(1) of the APA and the Man dam us Act. ” Sk alka v. Kelly , 246 F. Supp. 3d 147, 152 (D.D.C. 2017) (R JL)

. Although a court may order an agency “to perform a [mandatory] act, [i.e.,] to take action upon a matter,” a court may not decide “how [the agency] shall act.” Norton v. S. Utah Wilderness All

. , 542 U.S. 55, 62 (2004).
To determine whether a plaintiff ha s sufficiently alleged that agency action has been “unreasonably delayed,” courts apply the familiar “ TRAC ” factors laid out in Telecommunications Research & Action Center v. FCC (“ TRAC ”), 750 F.2d 70, 80 (D.C. Cir. 1984): (1) the time agencies take to make de cisions 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 expedi ting 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) (internal quotation marks omitted)

. Whether a delay is unreasonable “cannot be decid ed in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large par t . . . upon the complexity of the task at hand, the sig nificance (and permanence) of the outcome, and t he resources available to the6 agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1102 (D.C. Cir. 2003)

. In his opposition to Defendants ’ motion to dismiss, Plaintiff indicates that the TRAC metho dology is inappropriate at the mo tion to dismiss stage, in large part because “ discovery into facts relevant to the TRAC factors is necessary [.] ” 2 Pl. ’ s Resp. at 4 ; id. at 3 (claiming “ the current judicial trend finds that motions to dismiss are inappropriate for unreasonable delay cases ” ). Some district courts have concluded that it is inappropriate to decide unreasonable delay claims at the motion to dismiss stage. See Thomas v. Pompeo , 438 F. Supp. 3d 35, 44 (D.D.C. 2020) (ESH) (concluding that “any determination of whether defendants have unreasonably delayed adjudication . . . i s premature at this juncture”). However, the majority of authority i n this jurisdiction demonstrates that it is appropriate to apply the TRAC factors at the motion to dismiss stage. See, e.g. , Bagherian v. P ompeo , 442 F. Supp. 3d 87, 94 (D.D.C. 2020) (JDB) (applying
TRAC fac tors at the motion to dismiss stage) ; Didban v. Pompeo , 435 F. Supp. 3d 168, 175 (D.D.C. 2020) (CRC) (same); Sarlak v. Pompeo , No. 20

- cv - 35, 2020 WL 3082018, at *5 (D.D.C. June 10, 2020) ( BAH) (same); Skalka , 246 F. Supp. 3d at 15 3

– 54 (RJL) (same); Palakuru , 521 F. Supp. 3d
at 50 (TNM) ( same ) . Accordingly, the Court concludes that it may consider whether Plaintiff ’ s C omplaint meets the Rule 12(b)(6) pleading standards. The Court notes t ha t it is “not determining whether there has been an unreasonable delay; rather, it is determining whether plaintiff [ ’ s] complaint has alleged facts sufficient to state a plausible claim for unreasonable administrative

2 Plaintiff also takes issue with Defendants “ cit[ing] to and rel[ying] on facts outside of the pleading s ” and therefore urges the Court to “ignore[] ” those facts or convert Defendants ’ motion to dismiss to a s ummary judgment motion. Pl. ’s Resp. at 2. However, court s may take judicial notice “of information posted on official public websites of government agencies. ” Devani , 2023 WL 2913645, at *3 n.1 ; s ee Koutny v. Martin , 530 F. Supp. 2d 84, 89 (D.D.C. 200 7) (RWR) ( “[C]ourt may take judicial notice of matters of a general public nature . . . without converting t he motion to dismis s into one for summary judg ment. ”). It is not appropriate to convert the pending motion into a motion for summary judgmen t.7 delay.” Ghadami v. U.S. Dep’t of Homel and Sec. , 2020 WL 1308376, at *7 n.6 (D.D.C. Mar. 19, 2020) (ABJ). The Court now considers the TRAC factors in turn.
A. TRAC Factor s One and Two The D.C. Circuit has explained that the first TRAC factor

— the time agencies take to make decisions must be govern ed by a “rule of reason”

— is the “most important,” although it is generally reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc. , 531 F.3d 849, 855 (D.C. Cir. 2008). The first inquiry cen ters on “whether the agency’s response time

. . . is governed by an identifiable rationale.” Ctr. for Sci. in the Pub. Int

. v. FDA , 74 F. Supp. 3d 295, 300 (D.D.C. 2014) (JEB). On July 18, 2023, USCIS modified its review system for I

- 526 petitions, anno uncing that it will group petitions filed on or b efore November 30, 2019 by new commercial enter prise within the queue where the pro ject has been reviewed and a visa is or soon will be available. USCIS Up dates Visa Availability Approach for Managing Form I

- 526 Petition Inve ntory , USCIS (July 18, 2023), https://www.uscis.gov/newsroom/alerts/uscis

- updates

- visa

- availability

- approach

- for

managing

- form

- i

- 526

- petition

- invento ry ; see also Defs. ’ Notice at 2. Within that queue, USCIS will order petitions in a “ first

- in, first

- out ” methodology, determin ed “ by date of the e arliest filed petition in that queue for each [new commercial enterprise ]. ” Update to V isa Availability Ap proach for Form I

- 526 , USCIS , https://www.uscis.gov/working

- in

- the

- un ited

- states/permanent

workers/employment

- based

- immigration

- fifth

- preference

- eb

- 5/update

- to

- visa

- availability

approach

- for

- form

- i

- 526 ( last updated July 18, 2023); see also Defs. ’ Notice at 2

– 3. The purpose of t his modification is to “ increase productivit y ” and “ more efficiently process For m I

- 526 petitions ” by allowing USCIS to consider petitions related to the same commer cial enterprise simultaneously “ given the overlap in project documents and issues presented. ” Update to V isa8 Availability Approach for Form I

- 526 , USCIS , https://www.uscis.gov/working

- in

- the

- united

state s/permanent

- workers/employment

- based

- immigration

- fifth

- preference

- eb

- 5/update

- to

- visa

availability

- approach

- for

- form

- i

- 526 ( last updated July 18, 2023)

. The July 2023 revis ion did not change USCIS ’ s general “ visa availability approach, ” whereby applicant s “ from countries where visas are currently available or soon to be availa ble ” receive priority. Defs. ’ Notice at 1

– 2 ; Devani , 2023 WL 291 3645, at *3 (explaining the general visa availability approach). For petitions where visas are available , either no w or soon, USCIS continues to follow its “ first

- in, first

- out ” approach. Def s. ’ Notice at 2. Like other district courts in this jurisdiction, the Court concludes that USCIS ’ s “ visa availability approach ” adheres to an “ identi fiable rationale. ” See Devan i , 2023 WL 2913645, at *3; see also Da Costa v. Immigr
. Inv. Pro gram Off. , 643 F. Supp. 3d 1, 13 (D.D.C. 2022) (JEB) (collecting cases) ; Krihely v . Mayorkas , No. 22

- 2973, 2023 WL 6215360, at *4 (D.D. C . Sept. 25, 2023) (RC) (concluding the same even with th e July 2023 update). As for the second factor, Congress has not mandated a binding timeline for USCIS ’ s processing of I

- 526 petitions. “To the contrary, Congress has given the agencies wide discretion in the area of immigration processing.” Skalka, 246 F. Supp. 3d at 153

– 54

. And, while “ [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, ” Compl. ¶ 30, “ a sense of Congress resolut ion is not law , ” Emerg. Coal to Def. Educ. Travel v. Dep ’ t of Treasury , 545 F. 3d 4, 14 n.6 (D.C. Cir. 2008). Accordingly, there is no congressional timeline that binds the processing of I

526 petitions. Palakuru , 521 F. Supp. 3d at 51 (deeming the langua ge to be “ precatory rather than binding ” ). At most, Congress ’ s “ aspirational statement ” only slightly ti lts the second TRAC factor in Plaintiff ’ s favor as his petition has been pending for approximately 52 months (i.e., 4.3 years)

.9 Da Costa , 80 F.4th at 3 44 ( “ This factor somewhat favors Plaintiffs, as they have waited longer than 1 80 days

. ” ). Plaintiff argues that there is “ no rhyme or reason to ” USCIS ’s approach for processi ng I

526 petitions, emphasizing that he is an individual from an underrepresented country (Iran) where “visas are currently available ” but h is petit ion has n ot yet been adjudicated. Pl. ’s Resp. at 5. As a thres hold matter, the Court notes that Plaintiff fails to account for certain events that occurred during the relevant period in this case : the COVID

- 19 pandemic and the nine

- month lapse in statutory a uthorization for the EB

- 5 program. While the “ wait is undoubtedly maddening, ” the Court must nonetheless consider these obstacles in its analysis

. See Da Costa , 80 F. 4th at 342

. The D. C. Circ uit has previously concluded that a delay of approxim ately 4. 5 years was insufficient by itself to establish “ that USCIS lacks a rule of reason ” when considering the “ nine

- month pause in sta tutory authorization and the se rious practical challenges posed by a global pandemic. ” Id. Here, Plaintiff ’s delay ha s been approximately 4.3 years , Compl. ¶ 15, approximately two months less than the 4.5 years the D.C. Circuit has considered , Da Costa , 80 F. 4th at 342

. In sum, the Court finds that the first TRAC factor weighs in favor of Defendants , and the second TRAC factor only weighs slightly in Plaintiff ’ s favor.
B. TRAC Factors Three & Five The third and fifth TRAC factors are often considered together and require the Court to consider Plaintiff ’ s interests, health, and welfare. Ghadami , 2020 WL 1308376, at *9

. Pl aintiff claims that he has suffered “ health and human prejudices ” because of the delay. Pl. ’ s Resp. at 7. Specifically, he alleges that the delay “ prevents [him] from acquiring lawful permanent residency and all of the benefits and stability associat ed with that status. ” Id.10 Although the Court recognizes that Plaintiff most certainly has an interest in the swift adjudication of his petition , “so too do many others facing similar circumstances.” Palakuru , 521 F. Supp. 3d at 53. But Plaintiff has n ot pled plausible allegations to his “health and welfare,” as present in other cases in which courts have weighed these factors in a plaintiff’s favor. See, e.g. , Ghadami , 2020 WL 1308376, at *9 (applicant was “irrevocably harmed” by separation from his

w ife an d children due to the delay). Delays in the ability to immigrate, while certainly stressful and of importance to an applic ant ’ s future, are ordinarily considered “ economic in nature ” and

“ inherent in the immigration process. ” Bega v. Jaddou , No. 22

- 2171, 2022 WL 174031 23, at *7 (D.D.C. Dec. 2, 2022) (BAH).
W hile the Court is sympathetic to Plaintiff ’ s economic harms

— as well as any harm Plaintiff is experiencing from the uncertainty

— such allegations , without more, are insufficient to weigh TRAC fac tors three an d five in his favor. See, e.g. , Da Costa , 80 F.4th at 344

– 45 (“The financial harms Bega alleges, along with the uncertainty that results any time an individual must continue to wait to secure a benefit, are insufficient to tip TRAC factors th ree and five in his favor.”); Desai v. U.S. Citizenship & Immigr. Servs. , No. 20

- 1005, 2021 WL 1110737, at *7 (D.D.C. Mar. 22, 2021) (CKK) (“purely economic” harm was insufficient to weigh the TRAC factors in plaintiff’s favor).
As such, TRAC factors thre e and five do not support Plaintiff ’ s case. See, e.g. , Da Costa , 80 F.4th at 344

– 45

. C. TRAC Factor Four Next, TRAC factor four requires an assessment of “the effect of expediting delayed action on agency activities of a higher or competing priority.” TRA C , 750 F.2d at 80.11 The D.C. Circuit has emphasized the importance of considering “competing priorities” in assessing the “reasonableness of an administrative delay”

— even “refus[ing] to grant relief when all the other factors considered in TRAC favored it, where a judicial or der putting the petitioner at the head of the queue [would] simply move[] all others back one space and produce[] no net gain.” Mashpee Wampanaoag Tribal Council, Inc. , 336 F.3d at 1100 (quoting In re Barr , 930 F.2d 72, 75 (D.C. Cir. 19 91)); see also Ghad ami , 2020 WL 1308376, at *9 (finding that “expediting review in [the plaintiff’s] case would merely direct government resources from the adjudication of other waiver applications”). Any such order would plainly interfere with the agency ’s “unique

–– and
aut horitative

–– position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way.” In re Barr , 930 F.2d at 76.
In h is C omplaint, Plaintiff requests that the Court enter a n order compe lling Defendants to

“ adjudicate [his] I

- 526 petition without further delay. ” Compl. at 1 7. The relief Plaintiff seeks

— the prompt adjudication of his petition

— would mean that others waiting for adjudication would be likely displaced

. See id. This is pre cisely what factor four counsels against. See, e.g. , Khoshrou v. Blinken , 2023 WL 4930086, at *7 (D.D.C. Aug. 2, 2023) (C K K); Palakuru , 521 F. Supp. 3d at 52 (“Were the Court to compel the Government to act on Palakuru’s petition, it would sim ply move
him to the head of queue because he sued.”). While Plaintiff ar gues that h e is “ not re questing to jump the line in front of all I

- 526 applicants, but merely to be prioritized as intended by Congress and USCIS , ” Pl. ’ s Resp. at 8, Plaintiff ignores the fact th at a court order directin g Defendants to adjudicat e his petition “would still put him ahead in the queue of those similarly situated , ” Desai , 2021 W L 1110737, at *7 ( emphasis in original)

. Courts in this jurisdiction , including this Court, routinely dec line to grant relief that would place one prospective visa applicant ahead of others

. S ee, e. g. , Xiaobing Liu v. Blinken , 544 F.12 Supp. 3d 1, 13 (D.D.C. 2021) (TJK) (“This factor not only favors Defendants , but ends up altogether dooming Plaintiffs’ claims of unreasonable delay.”); Verma v. U.S. Citiz en sh i p & Immigr. Servs. , 2020 WL 7495286, at *9 (D.D.C. Dec. 18, 2020) (RDM) ; Dehghanighanatghestani v. Mesquita , 2022 WL 4379061, at *7 (D.D.C. Sept. 22, 2022) (CKK) ; Pushkar v

. Blinken , 2021 WL 4318116, at *7 (D.D.C. Sept. 23, 2021) (CKK)

. The Court will now do the same here , finding that the fourth TRAC factor weighs against Plaintiff

. D. TRAC Factor Six Finally, t he sixth TRAC factor states that a “[c]ourt need not find any impropriety lurking behind agency lassitude in order to hold the agency action is unreasonably delayed.” Ghadami , 2020 WL 1308376, at *9. The Court “must determine whether the agency has acted in bad faith in delaying action.” Gona v. U.S. Citizen sh ip & Immigr. Servs

. , 2021 WL 736810, at *5 (D.D.C. Feb. 25, 2021) (RCL).
In the C omplaint, Plaintiff alleges no facts to plausibly support his conclusory claim that

“ Defendants ’ delays in processing Plaintiff ’ s petition are part of an overall effort on the part of Defendants to delay proces sing times for immigrants seeking benefits. ” Compl. ¶ 38. Plaintiff points only to the increase in the overall case processing times over the past two (2) years. Id. ¶ 39. But alleging an increase in delay s does not d emonstrate that impropriety is the caus e. Other possible events , including the COVID

- 19 pandemic and the nine

- month statutory lapse, can be the cause of the increased delays. See Iqbal , 556 U.S. at 678 ( a complaint must do more than “ plead[] facts that are merely consistent with a defenda nt ’ s liability ” ).
In his opposition to Defendants ’ motion to dismiss, Plaintiff re iterates his belief of agency impropriety. See Pl. ’ s Resp. at 9

– 10. He argues that USCIS has “ taken affirmative actions, unknown to the public, to purposefully delay adju dications of EB

- 5 petitions and applications13 contrary to law. ” Id. at 9 . As an initial matter, it “ is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss

. ” Sanchez

- Mercedes v. Burea u of Prisons , 453 F. Supp. 3d 40, 430, n

. 21 (D.D.C. 2020) (TNM) (quotation marks and alteration omitted). In any event, even if the Court were to consider Plaintiff ’ s arguments in his opposition, Plaintiff still fails to plausibly allege facts supporting his claim of agency impropriety. He cite s to one news article, which addressed unaccompanied migrant children at the border , not the EB

- 5 program. See Pl. ’ s Resp. at 9 ( quoting Quinn Ow e n, DHS chief defends Biden admin on immigration, says Trump

‘ gutted ’ system , ABC News (Mar . 1 , 2021), https://abcnews.go.com/Politics/dhs

- chief

- defends

biden

- admin

- immigration

- trump

- gutted/story?id=76189428 ). Finally, the nine

- month pause in ad

judicati ng I

- 526 petitions during the statutory authorization lapse was neither reckless n or “ in violation of the law, ” Pl. ’ s Resp. at 10, but rather “ was compelled by the law , ” Devani , 2023 WL 2913645, at *6

. As TRAC directs, however, the lack of plaus ible allegations of impropriety does not weigh against Plaintiff , and therefore does not alter the Court ’ s analysis. See Palakuru , 2021 WL 674162, at *6 (considering the sixth TRAC factor “neutral” even though the plaintiff alleged that the government ha d engaged in “purposeful delay” and “artificially inflate[d] [] processing times”).

* * * Overall, the Court ’ s analysis of the TR AC factors favors Defendants

. Plaintiff has failed to adequately allege that Defendants unreasonably delayed adjudicat ing his I

- 526 petition. Therefore, his APA, Mandamus, and Declaratory Judgment Act claims fail. See Bag herian , 442 F. Supp. 3d at 96 (r ejecting plaintiff ’ s mandamus claim for the reasons it rejected the claim for declaratory judgment under the APA).14 IV. C ONCLU SION For the foregoing reasons, the Court shall GRANT Defendants’ [5] Motion to Dismiss and
DISMISS the [1] Complaint for Mandamus and Declaratory Judgment

. An appropriate O rder accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR

- KOTELLY Unit ed States District Judge