Hassan v. Dillard: When Visa-Delay Litigation Survives Dismissal
United States District Court, District of Minnesota – Dec. 4, 2024
1. Why this case matters
Backlogs in family-based immigration have pushed federal courts to police “administrative processing” delays more aggressively. Hassan v. Dillard adds a significant Midwestern voice to that debate, holding that a twenty-month stall in a K-1 fiancé-visa case may be reviewable under the Administrative Procedure Act (APA) even after the Supreme Court’s recent restriction of constitutional claims in Department of State v. Muñoz and its abandonment of Chevron deference in Loper Bright Enterprises v. Raimondo.
2. Factual backdrop
- Parties. Samsam Abas Hassan, a U.S. citizen in St. Cloud, Minnesota, seeks to bring her Somali fiancé, Abdikani Bashier Hussein, to the United States.
- Timeline.
- July 2021: I-129F petition filed.
- June 2022: USCIS approval.
- March 2023: Consular interview in Nairobi; visa “refused” under INA § 221(g) and sent to “administrative processing.”
- Dec. 2024: Twenty months later, no further action.
- Hardship. Separation has forced Ms. Hassan to send her toddler back to Kenya, abandon graduate school, delay opening a grocery store, and incur debt.
These undisputed facts frame her APA and Mandamus claims of “unreasonable delay.”
3. Procedural posture
The government moved to dismiss under Rule 12(b)(6), arguing:
- Muñoz forecloses any Fifth-Amendment due-process right to have one’s non-citizen fiancé admitted.
- Consular officers owe no nondiscretionary duty once a visa has been “refused,” citing the D.C. Circuit’s 2024 decision in Karimova v. Abate.
- Consular non-reviewability bars suit, and, in any event, a 20-month lag is not “unreasonable” under the TRAC factors.
Judge Katherine Menendez granted the motion only on the constitutional claim; the APA/Mandamus causes of action survived.
4. Key holdings & analysis
4.1 Due-process claim dismissed — Muñoz controls
Citing the Supreme Court’s June 2024 holding that “a citizen does not have a fundamental liberty interest in her non-citizen spouse being admitted,” the court found Ms. Hassan lacked a protected liberty interest. Her substantive and procedural claims fell together.
4.2 A live APA duty despite a “refusal”
- Rejecting Karimova. The court declined to treat a § 221(g) refusal as a final, non-reviewable act. Unlike the D.C. Circuit, it emphasized that State’s own portal promises applicants “another adjudication once administrative processing is complete,” signaling the matter is not yet concluded.
- Chevron is gone. With Loper Bright eliminating deference to agency interpretations, the court felt no obligation to follow the State Department’s Foreign Affairs Manual reading that a refusal ends the process.
4.3 Consular non-reviewability does not apply
Because the visa has not reached a final disposition, the court held that reviewing delay (not merits) falls outside the non-reviewability doctrine.
4.4 TRAC-factor pleading hurdle cleared
At the motion-to-dismiss stage, a 20-month lull with acknowledged “ongoing security screening” could not be deemed reasonable as a matter of law. A factual record was needed to evaluate the six TRAC factors.
5. Implications for practitioners
| Post-Muñoz playbook | Practical takeaways |
| Constitutional path is shut. After Muñoz, expect due-process challenges in visa-delay suits to be tossed quickly. | Lead with APA § 706(1) and Mandamus theories; reserve constitutional claims only where facts differ materially. |
| Circuit split emerging. Hassan intensifies tension with Karimova (D.C. Cir.). Unless the Eighth Circuit reverses, forum choice now matters even more. | If your client resides outside D.C., consider filing in circuits that read § 221(g) refusals as non-final. |
| Chevron-free zone. Loper Bright invites courts to read the INA and 22 C.F.R. § 42.81 without deferring to the Foreign Affairs Manual. | Challenge agency arguments rooted solely in internal manuals, especially on “finality” and processing queues. |
| TRAC still flexible. No bright-line benchmark exists; facts that humanize harm (medical issues, financial strain, child separation) remain central. | Document every hardship; collect declarations contemporaneously to bolster TRAC factor 3 (human welfare) and factor 5 (prejudice). |
6. Broader significance
- Family-unity delays remain litigable. While Muñoz narrows constitutional avenues, district courts continue to scrutinize prolonged “administrative processing.”
- Judicial oversight in a post-Chevron world. Courts may feel freer to question State’s interpretation of its own regulations, potentially accelerating future adjudications.
- Potential Supreme Court review. A clean circuit split on whether § 221(g) refusals are final could draw certiorari, especially given the Court’s renewed interest in immigration-procedure cases.
7. Conclusion
Hassan v. Dillard underscores that, even after landmark Supreme Court decisions trimming constitutional rights and agency deference, APA unreasonable-delay litigation remains viable—at least where the government’s “refusal” functions as a holding pattern rather than a final decision. For couples separated by processing purgatory, the courthouse door is still ajar.