Motaghedi v. Pompeo

436 F.Supp.3d 1345

Seyed Amin Sam MOTAGHEDI, et al., Plaintiffs,

v.Michael R. POMPEO, et al., Defendants.

1:19-cv-01466-LJO-SKO

United States District Court, E.D. California.

Signed January 30, 2020

Curtis L. Morrison, The Law Office of Rafael Urena, Los Angeles, CA, for Plaintiffs.

Audrey Benison Hemesath, United States Attorney's Office, Sacramento, CA, for Defendants.

ORDER RE DEFENDANTS' MOTION TO DISMISS

(ECF No. 29)

Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On October 15, 2019, Plaintiffs filed a complaint alleging that Defendants withheld adjudications of case-by-case waivers of Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats ("PP 9645"). See ECF No. 1 ¶ 1. Plaintiffs raise claims under the Administrative Procedure Act ("APA"), as well as claims for mandamus relief, deprivation of procedural due process, and Equal Protection under the Fifth Amendment. See generally ECF No. 1.

On October 25, 2019, Plaintiffs filed a motion for a preliminary injunction. See ECF No. 10. The Court denied Plaintiffs' preliminary injunction motion on January 7, 2020. See ECF No. 44. On December 16, 2019, Defendants filed a motion to dismiss and the Declaration of Chloe Dybdahl in support of their motion to dismiss ("Dybdahl Declaration").¹ See ECF No. 29. Plaintiffs filed an opposition to the motion to dismiss on January 10, 2020. See ECF No. 42. Defendants filed their reply on January 17, 2020. See ECF No. 45. On January 24, 2020, Plaintiffs filed a notice of supplemental authority in support of their opposition to Defendants' motion to dismiss. See ECF No. 49.

The Court has reviewed the parties' filings and has determined the motion to dismiss is suitable for decision based on the papers under Local Rule 230(g). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

II. BACKGROUND

Plaintiffs are United States citizens and Lawful Permanent Residents ("Petitioner Plaintiffs") and their Iranian national relatives or fiancées applying for visas ("Beneficiary Plaintiffs").² See ECF No. 1. ¶ 3. Plaintiffs allege they have fulfilled all requirements to obtain family-based or fiancé-based visas. See id. ¶ 5. Their visas have been refused pursuant to PP 9645. See id.

PP 9645 prohibits the entry of all immigrants and certain categories of non-immigrants for nationals of Iran, Libya, North Korea, Syria, Venezuela, and Yemen, but provides a mechanism by which case-by-case waivers from the ban can be granted. See id. ¶ 6; PP 9645 § 2(b). PP 9645 provides that "Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism." PP 9645 § 2(b)(i).

PP 9645 provides that "a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner's designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate...." PP 9645 § 3(c). PP 9645 requires the Secretary of State and the Secretary of Homeland Security to "coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants." Id. This guidance includes standards, policies, and procedures for "determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States," "addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to" PP 9645, and "assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy" the national security requirement. Id. §§ 3(c)(ii).

PP 9645 further provides that a "waiver may be granted only if a foreign national demonstrates to the consular officer's or CBP official'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." PP 9645 § 3(c)(i). If an applicant is determined to be eligible for a visa, then the consular officer automatically considers the applicant for a waiver under PP 9645's three criteria. See February 22, 2018, Van Hollen Letter,³ at 4 (stating each applicant refused a visa under PP 9645 "must be considered for a waiver"); see also February 22, 2019, Van Hollen Letter, at 12 ("An applicant will be refused pursuant to the Proclamation under section 212(f) of the [INA] while their application undergoes administrative processing for a determination on the national security and public safety waiver criterion. However, applicants whose visa applications have been refused for administrative processing will receive a further adjudication—either an issuance or another refusal—upon completion of administrative processing.").

The first waiver criterion is met when an applicant demonstrates "an unusual situation exists that compels immediate travel by the applicant...." ECF No. 42 at 21 n.15. The second criterion is met when an applicant demonstrates "delaying visa issuance and the associated travel plans until after visa restrictions... are lifted would defeat the purpose of travel." Id.

Plaintiffs are individuals for whom consular officers have proposed a waiver, or whose eligibility for a waiver is being reviewed. See ECF No. 42 at 7. Plaintiffs contend that a group within the Department of State, known as the "PP 9645 Brain Trust," has implemented a policy and procedure stripping consular officers of the discretion granted to them by PP 9645. ECF No. 1 ¶¶ 10–15. Under this policy, Plaintiffs allege consular officers have been forced to seek the concurrence of the Visa Office and consular managers before granting any PP 9645 waiver. Id. ¶¶ 10–13, 97.

Plaintiffs allege that PP 9645 does not provide for consular manager's concurrence in waiver adjudications. See id. ¶¶ 11–12; see generally PP 9645 § 3(c). Plaintiffs argue that Defendants' standards, policies, and procedures "designating the authority and discretion to approve case-by-case waivers to non-consular officers, including consular managers, visa chiefs, consular section chiefs, consular management, the Visa Office, and even independent contractors with the firm Quality Support, Inc." are arbitrary and capricious that violate § 706(2)(A) and (D) of the APA. See ECF No. 1 ¶¶ 1–2, 8, 10–12.

Specifically, Plaintiffs allege Defendants "have unlawfully crafted a waiver adjudication scheme that, in its application, leads to the ongoing withholding of and/or untimely and unfair processing of case-by-case waivers for Beneficiary Plaintiffs, as well as the case-by-case waivers of all visa applicants similarly situated." See id. ¶ 13. Plaintiffs also quote one December 14, 2017, e-mail from Joel Nantais, a State Department Passport and Visa Examiner, which states: "Please be clear that the goal of this effort is not to create timely processing of waivers for any applicant who is ineligible under the proclamation." Id. ¶ 132. Plaintiffs argue that this demonstrates "Defendants' pattern and policy of unreasonable delay in dealing with waiver adjudication, as well as actions that are arbitrary and capricious." Id. ¶¶ 10–14.

According to a State Department report on the implementation of PP 9645, approximately 17,000 cases were undergoing national security and public safety reviews as part of the waiver consideration process as of early July 2019. See ECF No. 29 at 14. For the time period December 8, 2017, to October 31, 2018, 5,978 visa applications from individuals from Iran were undergoing administrative processing for a determination on national security and public safety waiver criterion.⁴ See February 22, 2019, Van Hollen Letter, at 12.

On September 24, 2019, Edward Ramotowski, Deputy Assistant Secretary for the State Department's Bureau of Consular Affairs, testified that "[w]e anticipate that a majority of pre-July 2019 waiver cases pending with the Department, most of which require some degree of manual review, should be completed by the end of 2019 or soon thereafter." ECF No. 1 ¶¶ 145, 170. Plaintiffs allege:

As recently as July 28, 2019, Defendants, through their U.S. Embassy in Kuala Lumpur, Malaysia, boasted in an email that "[Defendant] Department of State began implementing a procedure for PP 9645 cases that includes enhanced automated front-end (pre-interview) screening to determine whether any additional review is required related to determine whether the applicant has satisfied the national security and public safety waiver criterion," and that, "[t]his new automated system, which is now fully operational, should significantly increase the speed and efficiency of the vetting process for both current and future waiver cases while maintaining all security standards."

Defendant DOS's new "enhanced automated front-end (pre-interview) screening" is only being used for "current and future waiver cases," which is not inclusive of waiver considerations for Plaintiffs in this action, or more than 12,000 visa applicants⁵ who are similarly situated, because they are old waiver cases, and stuck in what Defendants misleadingly refer to as "administrative processing."

Id. ¶¶ 117–18.

Plainti...