365 F. Supp. 3d 1009
N.D. Cal.2019Background
- Plaintiffs (U.S. citizens, LPRs, and visa applicants from Iran, Libya, Somalia, Syria, Yemen) challenge administration of the waiver program created by Presidential Proclamation 9645, which restricts entry from certain countries but permits case‑by‑case waivers.
- The Proclamation directs consular officers and CBP to grant waivers if three criteria are met: undue hardship, no national‑security/public‑safety threat, and entry is in the national interest; agencies were to issue guidance elaborating waiver circumstances.
- State Department public statements and letters described a case‑by‑case waiver process and reported relatively few waivers approved in early 2018; a former consular officer and sample denial forms suggested systemic refusal or routinized denials.
- Plaintiffs allege systemic practices: applicants were routinely denied visas/waivers without opportunity to present evidence or have waivers considered, causing family separation and other harms.
- Claims: (1) APA challenge under the Accardi doctrine that the State Department violated its own waiver guidance; (2) Fifth Amendment due process and equal protection claims; (3) writ of mandamus. Defendants moved to dismiss under Rule 12(b)(6), arguing consular nonreviewability and other defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consular nonreviewability / justiciability | Challenge is to systemic waiver process, not individual consular decisions; therefore review is proper. | Consular visa and waiver decisions are committed to agency discretion and not judicially reviewable. | Court: Plaintiffs limited claim to systemic practices; challenge is justiciable and not an attempt to review individual consular merits. |
| APA / Accardi (agency must follow its own rules) | State Dept. promulgated waiver guidance and public statements; facts plausibly show the agency disregarded those procedures (blanket denials, refusal to accept evidence). | Government disputes facts and points to administrative data; argues merits belong in later proceedings. | Court: APA claim under Accardi pleaded plausibly; dismissal denied as to APA claim. |
| Fifth Amendment (substantive/procedural due process, equal protection) | Waiver denials and family separations violate liberty interests and reflect discriminatory administration. | Proclamation and waiver regime relate to national‑security interests; plaintiffs have not pleaded protected liberty interest nor non‑conclusory discrimination facts. | Court: Due process claims fail for lack of protected liberty/property interest; equal protection allegation too conclusory and faces rational‑basis hurdle; dismissed with leave to amend. |
| Mandamus | Plaintiffs seek mandamus as alternative to APA relief to compel agency action consistent with guidance. | Defendants note discretionary nature of consular decisions; plaintiffs' mandamus is duplicative of APA claim. | Court: Mandamus claim dismissed without prejudice as redundant to APA; may be renewed later if appropriate. |
Key Cases Cited
- Trump v. Hawaii, 138 S. Ct. 2392 (U.S. 2018) (upheld Proclamation under Section 1182(f) and noted waiver program as important feature)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agencies must follow their own rules and procedures)
- Morton v. Ruiz, 415 U.S. 199 (1974) (reinforcing that agencies must follow internal procedures when rights are affected)
- Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (presumption of judicial review of agency action)
- Regents of Univ. of California v. U.S. Dep't of Homeland Security, 908 F.3d 476 (9th Cir. 2018) (APA and review principles in immigration context)
- Heckler v. Ringer, 466 U.S. 602 (1984) (standards for mandamus; nondiscretionary duties required)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for plausibility)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requiring plausibility)