Ghadami v. U.S. Dep't of Homeland Sec.

SARA GHADAMI, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al. Defendants.

Civil Action No. 19-00397 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 19, 2020

MEMORANDUM OPINION

Plaintiff Sara Ghadami, an American citizen, initiated lawful processes to bring her parents to the United States in 2016. Plaintiff's mother now lives in this country with her three children, but her father is still waiting for an answer. On February 15, 2019, Sara and her father Ali Akbar Ghadamy filed a complaint in this Court against the United States Department of Homeland Security ("DHS"); the Citizenship and Immigration Services ("USCIS"); the Department of State; the U.S. Embassy in Ankara, Turkey; Kirstjen Nielsen, Former Secretary of DHS; L. Francis Cissna, Director of USCIS; William P. Barr, Attorney General of the United States; Michael Pompeo, the Secretary of State; and Jeffrey Hovenier, Charge de Affaires at the U.S. Embassy in Ankara, Turkey. Compl. [Dkt. # 1]. Plaintiffs allege that defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., and the Constitution's due process clause when they unreasonably delayed rendering a decision on whether Ali Akbar Ghadamy is entitled to a waiver of the restrictions on immigration set forth in Presidential Proclamation 9645. Compl. ¶¶ 12, 22-40.

On June 7, 2019, defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defs.' Mot. to Dismiss [Dkt. # 11] ("Defs.' Mot.") at 2. Defendants also argued that plaintiffs failed to state a claim upon which relief can be granted under Rule 12(b)(6). Id. at 14-17. Plaintiffs opposed the motion on July 5, 2019. Pls.' Opp. to Defs.' Mot. to Dismiss [Dkt. # 15] ("Pls.' Opp."). The Court finds that it has jurisdiction to review plaintiffs' claims but that they have failed to state a claim for relief. Thus, it will grant defendants' motion to dismiss.

BACKGROUND

I. Legal Background

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). After the petition is approved, it is forwarded to the Department of State's Processing Center. 8 C.F.R. § 204.2(a)(3). The foreign national is notified to go to the local U.S. consulate in his country to complete visa processing, which includes submitting an online Immigrant Visa and Alien Registration Application (Form DS-260) and appearing for an interview with a consular officer at the embassy. 22 C.F.R. § 42.67(a)(3).

At the conclusion of the interview, "the consular officer must [either] issue [or] refuse the visa . . . ." 22 C.F.R. § 42.81(a). "If the consular officer refuses the visa, he or she must inform the applicant of the provisions of law on which the refusal is based, and of any statutory provision under which administrative relief is available." 9 Foreign Affairs Manual ("FAM") § 504.1-3(g). "If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered." 22 C.F.R. § 42.81(e). At all times, the alien bearsthe burden of establishing that he "is not inadmissible" and "that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed." 8 U.S.C. § 1361.

On September 24, 2017, 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) ("Proclamation").¹ With some exceptions, the Proclamation sets forth that nationals of seven countries, including Iran, are banned from entering the United States. Id. at 45,163. The ban arose because "the Secretary of Homeland Security . . . determined that a small number of countries . . . remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory." Id. at 45,161. The constitutionality of the Proclamation was upheld in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018), and the waiver process played an important role in the Court's decision. Id. at 2422-23.

The Proclamation provides: "[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 . . . ." Proclamation, 82 Fed. Reg. at 45,168. "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." Id.

II. Factual and Procedural Background

Plaintiff Sara Ghadami ("Sara") is a U.S. citizen. Compl. ¶ 1. On May 17, 2016, she filed a Petition for Alien Relative (Form I-130) for her father, Ali Akbar Ghadamy, ("Ghadamy") an Iranian citizen. Id. ¶¶ 17, 18. The petition was approved on November 4, 2016, and it was forwarded to the Department of State for processing. Id. ¶ 19. Sara also filed a petition on behalf of her mother; her petition and visa application were approved, and her mother now lives in the United States. Pls.' Opp. at 2-3.

Sara's father then filed Form DS-260 in December of 2016, Compl. ¶ 20, and he had an interview with a consular officer on July 27, 2017. Declaration of Chloe Dybdahl, Ex. A to Defs.' Mot. to Dismiss [Dkt. # 11-2] ("Dybdahl Decl.") ¶ 4. His visa application was reportedly refused that day, id., and his case was placed in "administrative processing." Compl. ¶ 25. On March 2, 2018, the consular officer again refused Ghadamy's visa application. Dybdahl Decl. ¶ 5. Following this refusal, the consular officer proposed a waiver of the Proclamation's entry restrictions and the case was again placed in "administrative processing" for further evaluation. Compl. ¶¶ 25, 33. As of today, Ghadamy is still undergoing consideration for a waiver. Dybdahl Decl. ¶ 6. According to the government, the consular office has made a preliminary determination that the personal hardship and national interest prongs of the waiver have been met, but it is still deciding whether the national security prong can be cleared. Id. ¶¶ 5-6.

Since his waiver has been under review, Ghadamy has been separated from his wife of forty-six years and his three children. See Pl.'s Opp. at 4. On February 15, 2019, plaintiffs fileda complaint in this Court, claiming that the agency's delay in deciding Ghadamy's case is a violation of the APA and the Constitution's guarantee of due process under the Fifth Amendment. Compl. ¶¶ 22-40. They request relief in the form of a declaratory judgment that defendants have violated the law and a writ of mandamus compelling defendants to promptly complete administrative processing and to issue a visa to Ghadamy. Id. at 10.

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992); Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Failure to State a Claim

"To survive a [Rule 12(b)(6)] motion to...