ASHTARI v. POMPEOASHTARI v. POMPEO
Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
)
SANAZ ASHTARI, et al., )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-3797 (APM)
)
MIKE POMPEO, in his official capacity )
as Secretary of State, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER I.
On February 18, 2015, Plaintiff Sanaz Ashtari, a U.S. citizen residing in Texas, initiated the legal process required to bring her Iranian parents, Plaintiffs Abdollah Ashtari and Saedeh Mozaffari, to the United States. [1] Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 61, 79. This case concerns the delay in processing their visa applications. Although Ms. Mozaffari’s visa was approved almost four years later, shortly after the initiation of this lawsuit, [2] see Defs.’ Mot. to Dismiss, ECF No. 9 [hereinafter Defs.’ Mot.], Decl. of Chloe Dybdahl, ECF No. 9-2 [hereinafter Dybdahl Decl.], ¶ 4, Mr. Ashtari’s application remains in limbo to this day, id. ¶ 5.
Mr. Ashtari’s visa application was sent to the U.S. Embassy in Ankara, Turkey, for processing, see Compl. ¶ 61, where he appeared for a visa interview on August 24, 2016, id. at ¶ 63; Dybdahl Decl. ¶ 5. Five days after his interview, Mr. Ashtari was notified by email that his “‘visa case ha[d] been refused under Section 221(g) of the U.S. Immigration and Nationality Act [“INA”]’ and that ‘further administrative processing’ of his application was required.” Compl. ¶ 64. He was told that process, “on average[,] takes four months.” Id .
Nearly a year later, while Mr. Ashtari’s application was “still undergoing [ ] required administrative processing,” id . ¶ 65, 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) [hereinafter Proclamation]. Proclamation 9645 bans citizens of eight countries, including Iran, from entering the United States. Id. § 2. Although a blanket ban, the Proclamation does provide that “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 . . . .” Id. § 3(c). “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.” Proclamation § 3(c)(i). The Proclamation also requires the Secretary of State and the Secretary of Homeland Security to “adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” Id .
Pursuant to that adopted guidance, on March 22, 2018, the U.S. Embassy in Ankara requested that Mr. Ashtari complete form DS-5535, titled “Supplemental Questions for Visa Applicants.” Compl. ¶ 69. Several weeks later, Ms. Ashtari checked on the status of her father’s application, and was informed that “[a] consular officer [had] reviewed [his] case with its supporting documents and proposed a waiver for [him].” Id. ¶ 71. “Therefore,” the email explained, “[his] case has been under administrative process for further evaluation.” Id. “We are processing [his] case as quickly as possible,” the Embassy promised, noting that the process “may take months.” Id. As the months passed, Ms. Ashtari would periodically inquire as to the status of her father’s application with the Embassy in Ankara and at one point even reached out to her Senator for help. Id. ¶¶ 71–73. Each time, she was given a variation of the same response—that Mr. Ashtari’s case was “still undergoing the required administrative process,” and a decision on his waiver was still pending. Id. ¶¶ 72, 74. As of the date the Complaint was filed, the online status tracker for Mr. Ashtari’s application reflected that his “case [was] [ ] undergoing necessary administrative processing,” and that it “c[ould] take several weeks.” Compl. ¶ 75; see also id. , Ex. E, ECF No. 1-5. But at that point, it had already been over three years since Mr. Ashtari’s case was “refused,” Compl. ¶ 64, and over a year and a half since he submitted the Supplemental Questions in support of his waiver determination, id. ¶ 69.
Tired of waiting, Plaintiffs initiated this action on December 20, 2019, seeking a writ of mandamus or an order under the Administrative Procedure Act (“APA”) compelling unreasonably delayed agency action. See id . ¶¶ 141–165. Defendants then filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defs.’ Mot, Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss, ECF No. 9-1 [hereinafter Def.’s Mem.]. Plaintiffs oppose Defendants’ motion and have cross moved for summary judgment. See Pls.’ Cross Mot. for Summ. J. & Opp’n to Defs.’ Mot. to Dismiss, ECF No. 11, Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss & in Supp. of Pls.’ Cross Mot. for Summ. J., ECF No. 11-2 [hereinafter Pls.’ Mem.]. For the reasons explained below, the court denies both motions.
II.
A.
Defendants’ motion to dismiss invokes the legal standards for dismissal under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). With regard to the former, “[t]here is a
presumption against federal court jurisdiction, and the burden is on the party asserting the
jurisdiction . . . to establish that the [c]ourt has subject matter jurisdiction over the action.”
Logan
v. Dep’t of Veterans Affairs
,
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon
which relief can be granted.”
Bell Atl. Corp. v. Twombly
,
B.
Plaintiffs’ motion
implicates
the
standard
for
summary
judgment.
Although Rule 56 requires a court to grant summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law[,]” Fed. R. Civ. P. 56(a), “in APA cases, the summary judgment standard functions slightly
differently, because the reviewing court generally . . . reviews the agency’s decision as an appellate
court addressing issues of law.”
Pol’y & Rsch., LLC v. United States Dep’t of Health and Hum.
Servs.
,
III.
A.
The court first addresses Defendants’ two intertwined jurisdictional arguments. They
argue that because “a consular officer already denied [Mr.] Ashtari’s visa application,” Defs.’
Mem. at 1, both the mootness and consular nonreviewability doctrines bar judicial review of
Plaintiffs’ claims,
id.
at 1–2;
see Saavedra Bruno v. Albright
,
[3]
As other courts in this District have noted, “[t]here is some ambiguity as to whether the doctrine of consular non-
reviewability” is technically a matter of jurisdiction or is instead more properly classified as a merits matter.
Didban
v. Pompeo
,
Defendants next argue that Plaintiffs have not stated a claim under the APA. At the
threshold, they contend that “the waiver program is governed exclusively by the Proclamation—a
presidential action that is not subject to the APA”—and therefore the reasonableness of how long
the State Department has taken to process a waiver is not reviewable. Defs.’ Mem. at 10–11. But,
as the court observed in
Moghaddam
, that argument “overlook[s] several important points.” 424
F. Supp. 3d at 120. First among them is that “although ‘the APA does not expressly allow review
of the President’s actions,’
Franklin v. Massachusetts
,
The question then is whether Plaintiffs have alleged facts sufficient to plausibly establish
that Defendants were bound by policies or internal agency guidance requiring them to decide
Mr. Ashtari’s waiver eligibility. They have. Included in their pleading is State Department
guidance, intended to supplement its Foreign Affairs Manual, entitled “Operational Q&A on P.P.
9645 Travel Restrictions.” Compl., Ex. A., ECF No. 1-1. Regarding waivers, the guidance
unequivocally states that each visa applicant who qualifies for a waiver under Section 3(c) of the
Proclamation “must be considered for a waiver.”
Id.
at 2. And regarding visa refusals, it provides
that “before [a consular officer] refuse[s] an applicant under the [Proclamation], [he] must
determine whether the applicant may qualify for a waiver,” among other specific procedural
requirements.
Id.
at 4. Thus, while Defendants may be right that “the decisions to grant or deny
a waiver are committed [ ] to the discretion of the executive branch,”
see
Defs.’ Mem. at 11,
Plaintiffs have at least plausibly shown that the agency action they seek to compel—a decision on
the waiver itself—is not,
see, e.g.
,
Moghaddam
, 424 F. Supp. 3d at 121 (finding, based on
government pronouncements, counselor “officers do not have the discretion to
never
act on a
waiver application”);
Thomas v. Pompeo
,
Relatedly, Defendants assert that the State Department’s delay in making a waiver decision
is not subject to the APA because Section 9(c) of the Proclamation disclaims the creation of “any
right or benefit, substantive or procedural” against the United States or any of its agencies. Defs.’
Mem. at 11. But, again, Plaintiffs here are not challenging the Proclamation, but the State
Department’s delay in determining whether Mr. Ashtari qualifies for a waiver. That inaction is
subject to and reviewable under the APA.
See Thomas
,
Next, Defendants again invoke the doctrine of consular nonreviewability, Defs.’ Mem. at
9 (citing 5 U.S.C. § 706(2)), and additionally contend that Plaintiffs’ claims are unreviewable
because they involve “agency action [that] is committed to agency discretion by law,”
id.
at 10
(quoting 5 U.S.C. § 701(a)(2)). As already noted, the consular nonreviewability doctrine does not
apply to the withholding of a waiver determination. Furthermore, as discussed, the State
Department has adopted policies that commit the agency to deciding a qualified person’s eligibility
for a waiver. The agency “do[es] not have the discretion to
never
act on a waiver application.”
Moghaddam
,
Finally, the fact that the agency’s policies reflect no specific timeframe to act on waivers
is not fatal to a claim under the APA. The APA itself requires agencies to act within a reasonable
time.
See
5 U.S.C. §§ 555(b), 706(1). In considering whether agency delay is unreasonable, courts
in this Circuit apply the six factors articulated in
Telecommunications Research & Action Center
v. FCC
, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (
TRAC
).
[5]
Thus, “[r]esolution of a claim of
unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the
particular facts and circumstances before the court.”
Mashpee Wampanoag Tribal Council, Inc.
v. Norton
,
[5]
The
TRAC
factors are: “(1) The time agencies take to make decisions must be governed by a ‘rule of reason’; (2)
where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed
in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be
reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the
court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court
need not ‘find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably
delayed.’”
In re United Mine Workers of Am. Int’l Union,
C.
By the same token, although Plaintiffs have come forward with facts that are undisputed,
the court declines to enter summary judgment in their favor on the present record. Notably,
Defendants claim that there are “over 14,000 other visa applicants” awaiting waiver
determinations. Defs.’ Mem. at 1. The D.C. Circuit has counseled that a court should not compel
agency action where the result would merely move a plaintiff ahead in line at the expense of others.
See In re Barr Lab’ys, Inc.
,
Ultimately, the question of whether the State Department has taken too long to process
Mr. Ashtari’s waiver is one that requires the court to “examine ‘the facts of [the] particular case’
before it.”
Mashpee
,
D.
Finally, because the court finds that Plaintiffs have stated a claim under the APA, it need
not address Plaintiffs’ mandamus claim at this time. Mandamus relief is only available when
“there is no other adequate remedy available to plaintiff.”
Fornaro v. James
,
IV. For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 9, and Plaintiffs’ Cross-Motion for Summary Judgment, ECF No. 11, are denied.
Dated: October 23, 2020 Amit P. Mehta United States District Court Judge
Notes
[1] 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).
[2] The case was voluntarily dismissed as to Ms. Mozaffari on February 25, 2020. See Notice of Voluntary Dismissal, ECF No. 8.
[4] Although the D.C. Circuit has “has not clearly determined whether action taken pursuant to the Proclamation is
reviewable,”
Moghaddam
, 424 F. Supp. 3d at 120, it has held that agency regulations promulgated pursuant to
executive orders are reviewable under the APA,
see Chamber of Com. v. Reich
,