Albalwah v. Scott et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:25-cv-01255-STV
HASAN MOHAMMED ALBALWAH,
Plaintiff,
v.
JOSEPH B. EDLOW;1
KRISTI NOEM;
KASHYAP PATEL; and
PAMELA BONDI,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendants’ Motion to Dismiss (the “Motion”). [#6]
The parties have consented to proceed before the undersigned United States Magistrate
Judge for all proceedings, including entry of a final judgment. [##13, 16] This Court has
carefully considered the Motion and related briefing, the entire case file and the applicable
case law, and has determined that oral argument would not materially assist in the
1 Kika Scott is a named Defendant in the Complaint as she was the senior official
performing the duties of the Director of the United States Citizenship and Immigration
Services (“USCIS”) at the time the Complaint was filed. 	[#1 at ¶11] 	On July 15, 2025,
Joseph B. Edlow was confirmed as the Director of USCIS. 	See USCIS, About Us,
Organization, 	Leadership, 	Joseph 	B. 	Edlow, 	Director, 	USCIS, 	available 	at
https://www.uscis.gov/about-us/organization/leadership/joseph-b-edlow-director-us-
citizenship-and-immigration-services (last accessed October 29, 2025). 	Pursuant to
Federal Rule of Civil Procedure 25(d), Mr. Edlow “is automatically substituted as a party.”
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disposition of the Motion. For the following reasons, the Motion is GRANTED in part and
DENIED in part.
I. 	BACKGROUND
Plaintiff is a lawful permanent resident of the United States and a citizen of Iraq.
[#1 at ¶ 10] 	Defendant Joseph B. Edlow, sued in his official capacity, is the Director of
the USCIS, which is the component of the Department of Homeland Security (“DHS”)
responsible for adjudicating N-400 applications. 	[Id. at ¶ 11; see also supra n. 1]
Defendant Kristi Noem, sued in her official capacity as the Secretary of the DHS, is
responsible for overseeing DHS, including its adjudication of N-400 applications. [#1 at
¶ 12] Defendant Kashyap Patel, sued in his official capacity as the Director of the Federal
Bureau of Investigation (“FBI”), is responsible for performing background and security
checks for certain applications for immigration benefits. [Id. at ¶ 13] Defendant Pamela
Bondi, sued in her official capacity, is the Attorney General of the United States; applicants
for naturalization must establish eligibility to the satisfaction of the Attorney General. [Id.
at ¶ 14]
Plaintiff resides in Denver, Colorado and is the spouse of a United States citizen.
[Id. at ¶ 10] 	Plaintiff has resided in the United States for over three years. 	[Id. at ¶ 18]
He is presently a practicing dentist in Colorado. [Id. at ¶ 19] Plaintiff submitted an N-400
application to become a naturalized citizen on January 2, 2025. [Id. at ¶ 20] He filed the
necessary forms and supporting documentation, as well as the requisite filing fee. [Id. at
¶ 20] 8 U.S.C. § 1427 outlines the statutory requirements for an individual to become a
naturalized citizen. Plaintiff is prima facie eligible for naturalization. [Id. at ¶ 24]
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There are several steps taken during a review of an application for naturalization.
First, the Federal Bureau of Investigation (“FBI”) conducts a full criminal background
check on the applicant. 8 C.F.R. § 335.2(b). After completion of the background check,
USCIS must conduct an in-person interview of the applicant. 	Id. § 335.2(c). 	Currently,
Defendants 	are 	reviewing 	Plaintiff’s 	application 	and 	have 	noted 	that 	“nothing 	is
outstanding at this time.” 	[#1 at ¶ 16] 	Plaintiff has not yet been scheduled for his
naturalization interview. [Id. at ¶ 21]
While awaiting final adjudication of his N-400 application, Plaintiff has faced
difficulties travelling abroad.2 [Id. at ¶ 22] 	His elderly parents live outside of the United
States and Plaintiff has only visited them twice within the past eight years. [Id.] Plaintiff
additionally 	missed 	his 	sister’s 	wedding 	while 	awaiting 	adjudication 	of 	his 	N-400
application. [Id. at ¶ 23] Accordingly, Plaintiff has faced mental and emotional distress,
including stress and depression, throughout the pendency of his N-400 application. [Id.
at ¶¶ 22-23]
Based on these allegations, Plaintiff seeks a writ of mandamus compelling
Defendants to adjudicate Plaintiff’s application within 30 days, among various other forms
of relief. 	[Id. at 17-19] 	In Count One, Plaintiff seeks relief under the Mandamus Act
pursuant to 28 U.S.C. § 1361. [Id. at ¶¶ 26-48] Plaintiff alleges that he has a clear right
to the requested relief and Defendants have willfully and unreasonably failed to process
or adjudicate his N-400 application within a reasonable time. [Id. at ¶¶ 27, 31] In Count
Two, Plaintiff seeks relief under the Administrative Procedure Act (“APA”), pursuant to 5
U.S.C. §§ 706(1) and 706(2). 	[Id. at ¶¶ 49-55] 	Plaintiff alleges that Defendants have
2 Plaintiff does not specify what specifically is meant by “difficulties” in the Complaint.
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failed to carry out adjudicative and administrative functions delegated to them by law and
have unreasonably delayed in acting on his application. [Id. at ¶¶ 52-53] Finally, in Count
Three, Plaintiff seeks relief under the APA pursuant to 5 U.S.C. § 555(b). 	[Id. at ¶¶ 56-
64] Plaintiff alleges that Defendants have unlawfully withheld and unreasonably delayed
the legally required action of adjudicating Plaintiff’s N-400 application. 	[Id. at ¶ 59] 	On
June 24, 2025, Defendants filed the instant Motion seeking dismissal of Plaintiff’s
Complaint. [#6] Plaintiff has responded to the Motion [#10] and Defendants have replied
[#12].
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” 	Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on
mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain 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 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
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1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” 	Id. 	(quoting Twombly, 550 U.S. 	at 556). 	The ultimate duty of the
court is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. 	ANALYSIS
A. 	Claim One: Mandamus Act
Defendants argue that Claim One should be dismissed because actions under the
Mandamus Act are available only if a plaintiff has no other adequate remedy, and the APA
provides such an alternative remedy. [#6 at 5] The Mandamus Act provides district courts
with “original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.” 	28 U.S.C. § 1361. 	“To be eligible for mandamus relief, the petitioner must
establish (1) that he has a clear right to relief, (2) that the respondent’s duty to perform
the act in question is plainly defined and peremptory, and (3) that he has no other
adequate remedy.” Rios v. Zaglar, 398 F.3d 1201, 1206 (10th Cir. 2005) (citing Johnson
v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990)).
“Most of the courts that have addressed the issue agree, for purposes of
compelling agency action that has been unreasonably delayed, the mandamus statute
and the APA are co-extensive.” 	Cao v. Upchurch, 496 F.Supp.2d 569, 575 (E.D. Pa.
2007); see also Ali v. Frazier, 575 F. Supp. 2d 1084, 1090 (D. Minn. 2008) (same); Azzam
v. Chertoff, No. CV 07-6617 GAF (JTLx), 2008 WL 11419061, at *5 (C.D. Cal. Jan. 29,
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2008) (same); Qadir v. Gonzales, No. 07-3741 (FLW), 2008 WL 2625314, at *3 (D.N.J.
June 27, 2008) (same). 	Indeed, the duty of timeliness placed on Defendants, which
Plaintiff seeks a writ of mandamus to enforce, arises out of the APA. [See #1 at ¶ 29]
The APA and the Mandamus Act are “different means of ‘compelling an agency to
take action which by law it is required to take.’” 	Hernandez-Avalos v. INS, 50 F.3d 842,
844 (10th Cir. 1996) (quoting Soler v. Scott, 942 F.2d 597, 605 (9th Cir.)). 	Thus, it
necessarily follows that where a plaintiff can properly bring a suit to compel an agency to
take action under the APA, that plaintiff does not have “no other adequate remedy” as is
required to bring an action under the Mandamus Act. Ali, 575 F. Supp. 2d at 1090 (“the
APA itself provides a remedy for unlawfully delayed agency action, so plaintiffs in
immigration-delay cases have a remedy available other than mandamus” (emphasis in
original)). 	Indeed, the Tenth Circuit has noted that “when review by other means, such
as under the APA, is possible, mandamus isn’t available.” Audubon of Kan., Inc. v. U.S.
Dep’t of the Interior, 67 F.4th 1093, 1111 n.10 (10th Cir. 2023).
Plaintiff argues, without further elaboration, that the Mandamus Act claim does not
need to be dismissed merely because an APA claim has been brought. [#10 at 7] Plaintiff
does not cite any legal authority for this assertion and, as detailed above, contrary
authority from the Tenth Circuit exists. And though it is correct that plaintiffs may plead in
the alternative under Federal Rule of Civil Procedure 8(d)(2), the Court finds that the type
of claim Plaintiff alleges may be brought under Section 706 of the APA. Accordingly, a
writ of mandamus is not available, as Plaintiff has an adequate alternative remedy.
As a result, the Motion to Dismiss as to Claim One is GRANTED.
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B. 	Claim Two: APA Section 706(1)
Defendants argue that Claim Two under Section 706(1) should be dismissed
because Plaintiff has not adequately alleged that the amount of time Plaintiff has been
waiting for evaluation of his N-400 application constitutes an unreasonable delay. [#6 at
6-10] 	The APA tasks a reviewing court with “compel[ling] agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). To state a claim for unreasonable
delay, a party must assert “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) (emphasis
omitted). 	A plaintiff making a claim under Section 706(1) must thus show “that the
defendant (1) had a nondiscretionary duty to act, and (2) unreasonably delayed in acting
on that duty.” 	Mendez v. Chertoff, No. CIV-07-1402-M, 2008 WL 11337961, at *2 (W.D.
Okla. July 30, 2008) (citing Norton, 542 U.S. at 63-65).
By regulation, the USCIS is required to “notify applicants for naturalization to
appear before a USCIS officer for initial examination on the naturalization application only
after 	the 	USCIS 	has received 	a 	definitive response 	from 	the Federal 	Bureau 	of
Investigation that a full criminal background check of an applicant has been completed.”
8 C.F.R. § 335.2(b). “USCIS shall grant the application if the applicant has complied with
all requirements for naturalization under this chapter.” Id. § 335.3(a). “A decision to grant
or deny the application shall be made at the time of the initial examination or within 120-
days after the date of the initial examination of the applicant for naturalization under §
335.2.” Id.
On the face of Plaintiff’s Complaint, it is unclear whether the FBI has completed
Plaintiff’s background check. [See #1 at ¶¶ 25, 45] Defendants’ Motion to Dismiss implies
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that the background check has not yet been completed, but it does not make an explicit
statement on the matter. 	[#6 at 10] 	Thus, the Court construes Plaintiff’s Complaint as
pleading in the alternative that the delay in the processing of the application is because
the FBI background check is still pending or that the delay is because USCIS failed to act
after receiving notification that the background check was complete. This construction is
especially necessary in this context where Plaintiff is unlikely to possess information to
determine where in the process his application remains.
Accordingly, though the parties do not distinguish between Defendants, the Court
finds it necessary to do so to properly evaluate this claim.
1. 	USCIS and DHS Defendants Edlow and Noem
If Plaintiff’s background check has not yet been completed, USCIS is forbidden
from conducting an interview with Plaintiff. 8 C.F.R. § 335.2(b). This regulation compels
the conclusion that USCIS has no mandatory duty to adjudicate a naturalization
application until the FBI has notified it that a full criminal background check has been
completed. 	Many courts that have addressed this issue agree with this assessment.
Muminov v. Sessions, No. 1:18CV1034, 2018 WL 5298386, at *4 (N.D. Ohio Oct. 25,
2018) (“the temporal requirement does not begin until USCIS receives a definitive
response from the FBI”); Antonishin v. Keisler, 627 F. Supp. 2d 872, 879 (N.D. Ill. 2007)
(“USCIS has no duty to adjudicate a naturalization application before receiving a
‘definitive response’ from the FBI that the applicant’s background check is complete”);
Zaytsev v. Gantner, No. 04 Civ.7101 WHP, 2004 WL 2251665, at *1 (S.D.N.Y. Sept. 24,
2004) (“[w]hile [USCIS] may have a duty to adjudicate visa applications within a
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reasonable time, [USCIS] is not required to make any determinations until the requisite
security checks have been completed” (internal citations and quotations omitted)).
Plaintiff does not address the duties of USCIS in this alternative, though he does
allege that the USCIS Defendants lack statutory authority to withhold or delay action on
an N-400 application pending a background investigation. [#1 at ¶ 45] Nevertheless, the
Court cannot identify any alleged action that USCIS or the DHS must take while the FBI
background check is pending. Accordingly, if the delay in processing is the result of the
FBI not yet having completed a background check on Plaintiff, then Plaintiff has not
adequately pled a Section 706(1) claim against Defendants Edlow and Noem and
dismissal would be appropriate.
But, again, discovery has not yet begun and Plaintiff thus likely does not know
whether the delay results from the FBI not completing the background check or the USCIS
not scheduling the interview. Thus, the Court construes the Complaint as pleading these
two scenarios in the alternative. Fed. R. Civ. P. 8(d)(2). And if the FBI has completed its
background check and the USCIS has still refrained from evaluating Plaintiff’s application,
this Court finds, as many other courts do, that USCIS has a non-discretionary duty to
adjudicate Plaintiff’s naturalization application. See Mowlana v. Mukasey, No. 08-cv-
01769-LTB, 2009 WL 130571, at *4 (D. Colo. Jan. 20, 2009) (“It cannot be doubted that
Defendants 	owe 	Plaintiff 	a 	nondiscretionary 	duty 	to 	adjudicate 	his 	naturalization
application in a reasonable amount of time.”); Sawan v. Chertoff, 589 F. Supp. 2d 817,
828 (S.D. Tex. 2008) (“the USCIS has express statutory and regulatory duties to process
naturalization applications”); Palamarachouk v. Chertoff, 568 F. Supp. 2d 460, 467 (D.
Del. 2008) (“it is clear that there is a non-discretionary duty to adjudicate [naturalization]
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applications”); Sidhu v. Chertoff, No. 1:07-CV-1188 AMI SMS, 2008 WL 540685, at *8
(E.D. Cal. Feb. 25, 2008) (“The APA provides a requirement that Defendants process
Plaintiff’s application within a reasonable time.”); Moretazpour v. Chertoff, No. C 07-4264
BZ, 2007 WL 4287363, at *2 (N.D. Cal. Dec. 5, 2007) (“Once the FBI completes its
criminal background investigation, the USCIS has a mandatory duty to complete the
adjudication of the application.”). 	The Court recognizes that there is contrary authority.
See Smith v. Johnson, No. 16-cv-00066-GNS, 2016 WL 4030969, at *2 (W.D. Ky. July 26,
2016) (finding that USCIS does not have a clear, nondiscretionary duty to adjudicate
naturalizations prior to conducting an interview); Saini v. Heinauer, 552 F. Supp. 2d 974,
979 (D. Neb. 2008) (same). The Court is unpersuaded by this view. The authority is clear
that the USCIS “shall grant the application [for naturalization] if the applicant has complied
with all requirements for naturalization under this chapter.” 8 C.F.R. § 335.3(a). “Unlike
the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016). Accordingly, the
Court concludes that the USCIS must adjudicate naturalization applications “within a
reasonable time,” and “[w]ith due regard for the convenience and necessity of the parties
or their representatives.” 5 U.S.C. § 555(b). And the Court has authority through the APA
to “compel action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
The APA gives courts the discretion to determine whether an agency delay is
unreasonable. 	Biodiversity Conservation All. v. 	Jiron, 762 F.3d 1036, 1075 (10th Cir.
2014). The issue of unreasonable delay “cannot be decided in the abstract, by reference
to some number of months or years beyond which agency inaction is presumed to be
unlawful.” 	Wyandotte Nation v. Salazar, 939 F. 	Supp.2d 1137, 1148 (D. Wyo. 2013)
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(quoting Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094, 1102 (D.C. Cir.
2003)). Rather, the issue is whether the duration of time the agency has taken “satisfies
the rule of reason.” Id. at 1148-49 (quoting Mashpee Wampanoag Tribal Council, 336 F.3d
at 1102).
The Tenth Circuit, using guidance from the D.C. Circuit, has identified the following
factors to guide courts in determining whether an agency has unreasonably delayed an
action: “(1) the extent of the delay, (2) the reasonableness of the delay in the context of
the legislation authorizing agency action, (3) the consequences of the delay, and (4)
administrative difficulties bearing on the agency’s ability to resolve an issue.” 	Qwest
Commc’ns Int’l, Inc. v. F.C.C., 398 F.3d 1222, 1239 (10th Cir. 2005) (citing In re Chem.
Workers Union, 958 F.2d 1144, 1149-50 (D.C. Cir. 1992)). 	The Tenth Circuit expressly
adds a fifth factor to this list: “consideration of the complexity of the task envisioned by a
court’s 	remand 	order.” 	Id.3 	As 	other 	courts 	have 	noted, 	however, 	a 	“claim 	of
unreasonable delay is necessarily fact dependent and thus sits uncomfortably at the
motion to dismiss stage and should not typically be resolved at that stage.” 	Azadani v.
Gaudiosi, No. 24-cv-00825-CNS, 2025 WL 35597, at *4 (D. Colo. Jan. 6, 2025) (quoting
Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 451 (6th Cir. 2022)).
Accordingly, when “there is not enough information in the pleadings to adequately
analyze” the Qwest factors, it is appropriate for the court to deny a defendant’s motion to
3 Plaintiff argues that the Qwest factors impose an inappropriate test for review of an
unreasonable delay claim. 	[#10 at 12-14] 	But district courts are bound to follow the
precedent of the circuit in which the district court is located. 	See United States v.
Spedalieri, 910 F.2d 707, 709 (10th Cir. 1990). And through Qwest the Tenth Circuit has
issued guidance that this Court is bound to follow. 	Id.; see also Glenwood Springs
Citizens’ All., 639 F. Supp. 3d at 1180 (applying the Qwest factors to an unreasonable
delay case).
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dismiss a plaintiff’s APA claims. 	Id. 	A review of the Quest factors based upon the
information available in the pleadings demonstrates that this case falls within this general
admonition.
In considering the first Qwest factor, the Court addresses the extent of the delay.
Plaintiff submitted his N-400 application about ten months ago. [#1 at ¶ 20] Such a delay
may be unreasonable in light of Congress’s 180-day target for processing immigration
benefit applications. 	8 U.S.C. § 1571(b). 	In addition, in the Denver Office, USCIS
completes 80 percent of N-400 applications within 8.5 months. 	U.S. 	CITIZENSHIP AND
I MMIGR . S ERVS ., CHECK CASE P ROCESSING TIMES , https://egov.uscis.gov/processing-times/
(last accessed October 29, 2025). Defendants argue that Plaintiff has not stated a claim
for 	unreasonable 	delay 	because 	his 	application 	has 	not 	been 	pending 	for 	an
unreasonable amount of time.4 [#6 at 7] However, there is no bright-line rule as to when
4 Defendants cite to several cases that fail to persuade the Court on this point. 	First,
Defendants cite Mowlana for the proposition that a delay of two years to adjudicate the
plaintiff’s naturalization application, and of five months after the time the investigation and
background check were completed, is not an unreasonable delay. 	See Mowlana, 2009
WL 130571, at *4. 	However, the Mowlana court treated the defendants’ motion as a
motion for summary judgment. 	Id. 	Rather than finding that plaintiff did not adequately
plead an unreasonable delay, the court found that plaintiff did not show that the delay was
“clear[ly] and indisputabl[y]” unreasonable. 	Id. 	Here, the Court declines to convert the
Motion into a summary judgment motion as it has not been provided sufficient facts to
decide reasonableness. 	Defendants also cite to Abbaszadegan v. Chertoff for the
proposition that a delay of nearly four years in completing the FBI background check was
not unreasonable. No. 07-cv-0702-AW, 2008 WL 11509701, at *1, 3 (D. Md. July 8, 2008).
But the context of Abbaszadegan is important. Around 2007-2009, numerous lawsuits of
this nature were being filed because events in the early 2000s increased national security
concerns and simultaneously increased the FBI’s workload in conducting background
checks. 	See Aslam v. Mukasey, 531 F. Supp. 2d 736, 746 (E.D. Va. 2008); Dawoud v.
Dep’t of Homeland Sec., No. 3:06-cv-1730-M (BH), 2007 WL 4547863, at *7 (N.D. Tex.
Dec. 26, 2007). Thus, courts may have found, in that time period, that prolonged delays
were reasonable. Nevertheless, courts in recent years have held that “[n]ational security
interests 	and 	the 	complexity 	of 	the 	background 	check 	process 	can 	only 	excuse
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an agency’s delay in acting becomes unreasonable. 	Wyandotte Nation, 939 F.Supp.2d
at 1148. 	Without more information, the Court cannot conclude that this factor supports
Defendants’ position and outweighs the other Qwest factors. 	Rather, Plaintiff has
plausibly alleged that a delay of ten months is unreasonable, especially given that USCIS
has not yet even scheduled Plaintiff’s in-person interview. [#1 at ¶ 25]
Second, the Court addresses the reasonableness of the delay in the context of the
legislation authorizing agency action. 	Defendants note that no legislative directive
mandates a prescribed time for Defendants to schedule a naturalization applicant’s in-
person interview. [#6 at 8] “However, the Tenth Circuit determined in Forest Guardians
v. Babbitt that, when an agency has no ‘concrete deadline establishing a date by which it
must act,’ the APA’s ‘general admonition’ that agencies act ‘within a reasonable time’
controls.” 	Glenwood Springs Citizens’ All. v. United States Dep’t of the Interior, 639
F.Supp.3d 1168, 1183 (D. Colo. 2022) (quoting Forest Guardians v. Babbitt, 174 F.3d
1178, 1190 (10th Cir. 1999)). 	And as previously noted, Congress has provided the
following policy statement: “processing of an immigration benefit application should be
completed not later than 180 days after the initial filing of the application.” 	8 U.S.C. §
1571(b). Accordingly, it is plausible that a delay of ten months is unreasonable given this
legislative backdrop.
Third, the Court addresses the consequences of the delay. Defendants argue that
factor three is neutral because Plaintiff alleges only harms suffered frequently by
applicants for immigration benefits. 	[#6 at 8-9] 	Indeed, some courts have held that
reasonable delay.” 	Doe v. Risch, 398 F. Supp. 3d 647, 656 (N.D. Cal. 2019) (citation
omitted) (emphasis in original).
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“mental health and welfare interests” including “prolonged separation from [an applicant’s]
relatives” are experienced by all petitioners and thus do not outweigh other factors in an
unreasonable delay analysis. See Tang v. United States, No. 23-13187-RGS, 2024 WL
1836624, at *3 (D. Mass. Apr. 26, 2024). 	Nevertheless, other courts have found that
allegations such as stress, emotional hardship, and expense may indicate that a plaintiff
has adequately pled an unreasonable delay claim. Azadani, 2025 WL 35597, at *4. Here,
Plaintiff asserts that he has struggled to visit his parents abroad and missed his sister’s
wedding as a consequence of the delay in the processing of his naturalization application.
[#1 at ¶¶ 22-23] Additionally, Plaintiff alleges that he has experienced emotional distress
and depression. 	[Id.] 	Accordingly, Plaintiff has plausibly alleged that the third Qwest
factor weighs in his favor.
Fourth, the Court addresses administrative difficulties bearing on the agency’s
ability to resolve the issue. Defendants argue that Plaintiff asks them to prioritize Plaintiff
over other applicants. [#6 at 9-10] But this assertion is unsupported by the record before
the Court. The pleadings fail to make clear how Defendants prioritize N-400 applications,
how long the “queue” is for the applications, or where Plaintiff’s place is within this
“queue.” 	Accordingly, the Court has not been provided sufficient facts to determine
whether this factor weighs in favor of Defendants.
Finally, the Court considers the complexity of the task envisioned. 	Defendants
argue that because two separate agencies must work independently to adjudicate a
petitioner’s application, this task is complex. [#6 at 10] But, again, the record is devoid
of facts that would suggest a high level of complexity. As mentioned earlier, the Denver
Office is able to complete 80% of N-400 applications within 8.5 months. U.S. CITIZENSHIP
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AND I MMIGR . S ERVS ., CHECK CASE P ROCESSING TIMES , https://egov.uscis.gov/processing-
times/ (last accessed October 29, 2025). 	This includes both the FBI and the USCIS’s
tasks related to the evaluation. And while the USCIS must wait for the FBI to complete a
background check before scheduling its interview, the pleadings do not set forth any other
manner in which the two agencies would need to work together or why any such
coordination makes this task particularly complex. Accordingly, the difficulties of the task
are unclear and potentially outweighed by other Qwest factors.
Thus, the Court finds that the Plaintiff has plausibly alleged an unreasonable delay
claim under the APA. 	As a result, the Motion to Dismiss the Section 706(1) portion of
Claim Two against Defendants Edlow and Noem is DENIED.
2. 	FBI and Attorney General Defendants Patel and Bondi
Once again, the exact cause of the delay in processing Plaintiff’s application is not
clear. 	It is possible that the FBI has already completed Plaintiff’s background check. In
this event, Plaintiff does not allege that the FBI has any remaining duty with respect to his
application. Accordingly, as to this alternative, Plaintiff has not stated a Section 706(1)
claim against Defendant Patel and dismissal of Defendant Patel would be appropriate.
But it is possible (and indeed suggested by Defendant’s Motion [#6 at 10]) that the FBI
has not yet completed Plaintiff’s background check, thus delaying his naturalization
application’s processing. The Court thus turns to whether, in that scenario, Plaintiff has
plausibly alleged a Section 706(1) claim against Defendants Patel and Bondi.
The “only agency action that can be compelled under the APA is action legally
required.” 	S. Utah Wilderness All., 542 U.S. at 63 (emphasis omitted). 	The relevant
authority requires that USCIS receive a “definitive response” from the FBI that “a full
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criminal background check of an applicant has been completed” before USCIS can
interview an applicant. 8 C.F.R. § 335.2(b). Whether this regulation imposes a mandatory
duty on the FBI to complete a naturalization applicant’s background check is subject to a
split in authority. Compare Moretazpour, 2007 WL 4287363, at *1 (“where Congress has
conditioned [USCIS’s] mandatory action on the FBI’s completion of background checks,
and where applicants must pay the FBI, through [USCIS], to complete the background
checks, the Court holds that Congress has, by implication, imposed on the FBI a
mandatory duty to complete the background checks”); and Khdir v. Gonzales, No. 07-cv-
00908-MSK-MEH, 2007 WL 3308001, at *6 (D. Colo. Nov. 6, 2007) (“Logically, if USCIS
is prevented from acting on an application until the FBI completes a background check,
the FBI must be under some legal duty to complete a requested background check, even
if there is no set time within which the FBI must do so.”); with Wang v. Gonzales, No. 07-
02272-JWL-DJW, 2008 WL 45492, at *3 (D. Kan. Jan. 2, 2008) (“this court agrees . . .
that the FBI has no express mandatory duty, and the court should not infer such a duty”
(quotation omitted)); Omar v. Mueller, 501 F. Supp. 2d 636, 640 (D.N.J. 2007) (“Plaintiffs
[have not] cited any authority compelling the FBI to complete the [background] check
within a specified time period. Thus, Plaintiffs’ claims do not and cannot arise under the
APA.”); and Ibrahim v. Chertoff, 529 F. Supp. 2d 611, 614-15 (E.D.N.C. 2007) (“8 C.F.R.
§ 335.2(b), does not contain a specific time period in which the [background] check must
be completed . . . [and therefore] the court cannot consider plaintiff’s claim based on the
APA.”);
This Court tends to agree with those courts that have concluded that Section
335.2(b) creates a mandatory duty upon the FBI. “Because the FBI has a legal obligation
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to complete a background check at some point in time, it appears that the APA could
supply the court with authority to compel action by the FBI to promptly complete a
background check that has been unreasonably delayed.” 	Khdir, 2007 WL 3308001, at
*6. 	“To hold otherwise could result in the indefinite suspension of a naturalization
application adjudication should the FBI fail to complete the requisite criminal background
check, which would violate the APA.” Moretazpour, 2007 WL 4287363, at *2.
Ultimately, however, the Court need not decide the issue. Defendants do not argue
that the FBI does not have a mandatory duty to complete a background check. 	Nor do
they argue that the Attorney General does not have a mandatory duty in this regard.
Defendants instead focus their argument on the sufficiency of Plaintiff’s allegations of
delay. 	[See generally #6] 	And “it is not the court’s role to supply legal support [or
arguments] for either Party’s position.” Howell v. Liberty Life Ass. Co. of Boston, No. 17-
cv-02976-CMA-NYW, 2018 WL 3126101, at *5 n.3 (D. Colo. June 26, 2018). 	Thus, for
the reasons previously described, the Court concludes that Plaintiff has adequately pled
an unreasonable delay claim under the Qwest factors. As a result, the Motion to Dismiss
the Section 706(1) portion of Claim Two against Defendants Patel and Bondi is DENIED.
C. 	Claim Two: APA Section 706(2)
Defendants argue that Claim Two under Section 706(2) should be dismissed
because Plaintiff has not identified a “final agency action” which can be challenged under
the statute. [#6 at 6] The APA requires a reviewing court to “hold unlawful and set aside
agency action, findings, and conclusions found to be – (A) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; . . . (C) in excess of statutory
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jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance
of procedure required by law.” 	5 U.S.C. §§ 706(2)(A), (C), (D).
Under Section 706(2), a plaintiff may challenge only final agency actions. 	Utah
Native Plant Soc’y v. United States Forest Serv., 923 F.3d 860, 866 (10th Cir. 2019). For
an agency action to be final, it must “not be of a merely tentative or interlocutory nature”
and must “be one by which rights or obligations have been determined or from which legal
consequences will flow.” 	Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997))
(second quotation omitted). Defendants argue that Plaintiff does not meet this standard
because he merely alleges that Defendants unlawfully failed to act or withheld agency
action. [#6 at 6]
In response, Plaintiff asserts that Defendants’ conduct in unreasonably delaying
adjudication of his N-400 application amounts to “issu[ance] [of] a de facto denial of his
application.” 	[#10 at 8] 	Therefore, Plaintiff argues that delay is not a tentative or
interlocutory action because it is a decision in itself “to unreasonably delay adjudication
of Plaintiff’s naturalization application.” 	[Id.] 	In addition, Plaintiff argues that legal
consequences 	have 	resulted 	from 	the 	delay 	because 	Plaintiff 	has 	not 	obtained
citizenship. [Id.]
The Court respectfully disagrees with this framing. A similar argument was made
in Omar. 	In response, the court noted that “[d]efendants are not bound to act on
[plaintiff’s] N-400 application within a prescribed time frame [and] [t]he Court has no basis
upon which to conclude that [plaintiff’s] application has been effectively denied, simply
because it has been pending [for several years].” 	Omar, 501 F. Supp. 2d at 641. 	The
Court agrees with this analysis. 	Plaintiff’s application remains pending; Defendants’
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failure to interview Plaintiff is tentative. 	There is no allegation that Defendants have
refused to interview Plaintiff or refused to grant his N-400 application. Rather, Plaintiff’s
application is still in the process of being evaluated. 	The Court cannot conclude that
Plaintiff’s application has been denied de facto simply because it has been pending since
January. Accordingly, the Court finds that Defendants’ delay in interviewing Plaintiff and
assessing his application is a tentative, not final, action. Thus, Plaintiff cannot state a
claim under Section 706(2).
As a result, the Motion to Dismiss as to the Section 706(2) portion of Claim Two is
GRANTED.
D. 	Claim Three: APA Section 555(b)
Defendants argue that Claim Three should be dismissed because Section 555(b)
does not provide an independent cause of action. [#6 at 5] Under the APA, administrative
agencies are required to conclude matters “with due regard for the convenience and
necessity of the parties or their representatives and within a reasonable time.” 5 U.S.C.
§ 555(b). Section 555(b) represents a “general timing provision” which governs when “an
agency has no concrete deadline establishing a date by which it must act.” 	Forest
Guardians, 174 F.3d at 1190). Section 706(1) provides the Court with authority to compel
action delayed unreasonably in violation of Section 555(b)’s timing provision. Thus, when
a plaintiff alleges violations of Sections 555(b) and 706(1), courts find that they can
enforce the duties imposed by the APA under Section 706(1). See Mosayebian v. Blinken,
No. 24-cv-130-JLS-MMP, 2024 WL 3558378, at *4 (S.D. Cal. July 25, 2024) (finding that
Section 555(b) does not create an independent cause of action, but rather creates a duty
that may be enforced under Section 706(1)); see also Yu v. Brown, 36 F.Supp.2d 922,
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932 (D.N.M. 1999) (describing that when an agency is required to act within a reasonable
time as compelled by Section 555(b), Section 706 is the statute through which courts may
intervene to determine whether the delay is unreasonable).
Plaintiff argues that because Section 555(b) imposes what he describes as a
“mandatory, non-discretionary duty,” Section 555(b) is judicially enforceable on its own.
[#10 at 6] Plaintiff correctly notes that Section 706(1) operates in tandem with underlying
statutory obligations such as Section 555(b). 	[Id.] 	But although Section 555(b) creates
an obligation for administrative agencies, that obligation must be enforced by the Court
through other provisions such as Section 706(1). Mosayebian, 2024 WL 3558378, at *4.
Thus, Section 706(1) is the proper statute under which to bring this claim.
Accordingly, the Motion to Dismiss as to Claim Three is GRANTED.
IV. 	Conclusion
For the foregoing reasons, the Court respectfully GRANTS in part and DENIES in
part Defendants’ Motion to Dismiss. [#6] Claims One and Three are dismissed. To the
extent Claim Two brings a cause of action arising under 5 U.S.C. § 706(2), Claim Two is
dismissed. 	To the extent Claim Two brings a cause of action pursuant to 5 U.S.C. §
706(1), it shall proceed. 	It is further ORDERED that the parties shall contact chambers
within five days to set the matter for scheduling conference.
DATED: 	October 29, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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