368 F. Supp. 3d 527
E.D.N.Y2019Background
- U.S. citizens/LPRs and asylees filed immigrant petitions (I-130/I-730) for immediate relatives who are Yemeni nationals living in Djibouti; consular interviews were completed and applicants received informal "visa approved" slips but not printed visas.
- Presidential Proclamation 9645 (Dec. 4, 2017 effective) restricted entry from designated countries including Yemen; Section 6(c) grandfathered visas "issued" before the effective date; Section 3(c) authorized consular waivers.
- After the Proclamation became enforceable, the Djibouti Embassy refused visas based on the Proclamation; plaintiffs challenged delays, refusals, and denial of waivers and sought class certification, injunctions, and damages.
- Court previously issued a preliminary injunction for some plaintiffs it construed as having been issued visas; the Government later reconsidered many cases and issued visas to many plaintiffs; defendants moved to dismiss, plaintiffs moved to certify a class.
- The court denied class certification (failure of numerosity and ascertainability, limited commonality) and granted dismissal: many claims were moot (because visas later issued), and remaining merits and jurisdictional claims were dismissed largely on consular nonreviewability, plausibility, and precedent grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification under Rule 23(b)(2) | Common injury: approved-but-not-printed visas withheld under the Proclamation; many similarly situated applicants | Differences in timing/form of approval notices, individualized vetting, lack of evidence of other members; government records limited; ascertainability problems | Denied: commonality limited to narrow legal question (whether approval notice = issued visa), numerosity and ascertainability not satisfied |
| Mootness of claims for plaintiffs later issued visas | Relief sought (visas) not fully provided at time of suit; still want declarations/damages | Issuance of visas after suit remedies delay; declaratory/injunctive relief no longer available | Injunctive/declaratory claims dismissed as moot for visa-recipients; damages claims remain possible |
| Jurisdiction to review consular visa refusals / Mandamus (28 U.S.C. §1361) | Approval notices constituted "issued" visas under Proclamation §6(c); consular action reviewable because of bad faith | Consular nonreviewability limits judicial review; Government provided facially legitimate/bona fide reasons (Proclamation or inadmissibility); no adequate bad-faith pleading | Dismissed for lack of jurisdiction: plaintiffs failed to plausibly allege bad faith; consular decisions supported by bona fide reasons |
| Interpretation of approval notices vs. "issuance" under Proclamation §6(c) | Approval slips are evidence visas were issued before Proclamation effective date | Approval slips were informal, undated, unsigned, non-official; FAM requires issuance same or next day or finding of inadmissibility; slips not legally effective as visas | Court: approval notices are not visas for §6(c) purposes; thus Proclamation-based refusals were facially legitimate |
| APA / Declaratory / Due Process / Establishment / Equal Protection claims | Proclamation and implementation discriminated by national origin/religion; delays and denials arbitrary and motivated by animus; seek relief under APA, Constitution, Bivens | Trump v. Hawaii and consular-deference limit review; plaintiffs pleadings are conclusory; many plaintiffs lack live injury; Bivens expansion disfavored | Constitutional and statutory claims dismissed for failure to state a claim or preclusion by precedent; Bivens claim implausible and defendants entitled to immunity or no cause of action |
| §1985(3) conspiracy and Ninth Amendment/familial association/substantive due process claims | Defendants conspired to discriminate and interfered with family integrity and parenting rights | §1985(3) was not intended to reach federal officers; claims conclusory; no clearly established right violated; separation-of-powers concerns | Claims dismissed: §1985(3) inapplicable to federal officers (court’s view) and, in any event, allegations fail; familial/parental rights claims fail as pleaded |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (recognition of implied damages remedy against federal officers)
- Kleindienst v. Mandel, 408 U.S. 753 (judicial review of consular visa denials limited to a facially legitimate and bona fide reason)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (Rule 23 commonality and rigorous analysis requirement)
- Trump v. Hawaii, 138 S. Ct. 2392 (upholding Proclamation 9645; deference to Executive in entry/national security)
- Kerry v. Din, 135 S. Ct. 2128 (limitations on judicial review of consular refusals; bad-faith exception requires plausible particularized allegations)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard—conclusory allegations insufficient)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (reluctance to extend Bivens; separation-of-powers concerns)