VALA MOGHADDAM and NAHID SHAREI, Plaintiffs, v. MICHAEL POMPEO et al., Defendants.
Civil Action No. 19-668 (CKK)
January 22, 2020
COLLEEN KOLLAR-KOTELLY
MEMORANDUM OPINION
(January 22, 2020)
Pending before the Court is Defendants’ Motion to Dismiss, ECF No. 10. Defendants
I. BACKGROUND
In short, Plaintiffs allege that Defendants have denied them timely adjudication of Plaintiff Nahid Sharei‘s visa application and associated waiver under Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” which President Donald Trump signed on September 24, 2017. See 82 Fed. Reg. 45161 (2017) (“Proclamation“). The Proclamation “sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats.‘” Trump v. Hawaii, 138 S. Ct. 2392, 2404 (2018) (quoting Proclamation § 1(a)). To that end, the Proclamation restricted entry for nationals of several foreign states whose systems for managing and sharing such information the President considered inadequate. See id.; Proclamation § 2. This includes Iran, for which the Proclamation suspended entry of immigrants, with limited exceptions that are inapplicable here. See Proclamation § 2(b).
The Proclamation, however, also allows case-by-case waivers. See id. § 3(c). Under the Proclamation, a waiver is appropriate “when a foreign national demonstrates undue hardship, and that his [or her] entry is in the national interest and would not pose a threat to public safety.” Trump v. Hawaii, 138 S. Ct. at 2406; see Proclamation § 3(c)(i). The Proclamation singles out several scenarios as circumstances in which waivers “may be appropriate,” including when a “foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen,” specifically when “the denial of entry would cause the foreign national undue hardship.” Proclamation § 3(c)(iv)(C). In describing the waivers, the Proclamation notes that waivers are “issued by a consular officer as part of the visa adjudication process.” Id. § 3(c)(iii). Moreover, the Proclamation requires the Department of
Plaintiffs here are concerned with this waiver process as applied to them. Plaintiff Vala Moghaddam is a U.S. citizen while his wife, Plaintiff Nahid Sharei, is an Iranian national. Compl. ¶¶ 21-22. They were married on January 29, 2016. Id. ¶ 55. On December 21, 2016, Plaintiff Moghaddam filed a Petition for Alien Relative (an I-130 Petition) on behalf of his wife, Plaintiff Sharei. Id. ¶ 57. The petition was approved on July 7, 2017. Id. Subsequently, on August 9, 2017, Plaintiffs paid the visa processing fees and submitted Plaintiff Sharei‘s Immigrant Visa Electronic Application (a DS-260 Application) for an immigrant visa with the U.S. Embassy in Ankara, Turkey. Id. She was assigned the consular case number ANK2017702009. Id.
Plaintiff Sharei was interviewed by the Consular Section of the U.S. Embassy in Ankara on January 25, 2018. Id. ¶ 59. She attempted to submit a waiver request letter pursuant to the Presidential Proclamation during the interview, but it was refused. Id. ¶¶ 59-60. Her visa application was refused under Section 212(f) of the
As of the date of the filing of her Complaint, Plaintiff Sharei had waited nineteen months after filing her immigrant visa application and fourteen months since her interview without any determination of whether she was eligible for a waiver under the Proclamation. Id. ¶ 63. The online status checker for her visa application explained that her case was “undergoing necessary administrative processing.” Id.; see id. Ex. F. Although Plaintiffs have inquired as to the status of her application multiple times, they have not received any useful information indicating when her waiver eligibility will be processed. Id. ¶ 82. As of the date of this Memorandum Opinion, Plaintiff has been waiting twenty-nine months (over two years) since filing her visa application and twenty-four months (around two years) since her interview to discover whether she is eligible for a waiver. See id. ¶ 63. Plaintiffs claim that as a result of their separation, they have suffered numerous emotional, psychological, and monetary harms. Id. ¶¶ 65-76.
Plaintiffs brought this suit on March 10, 2019. See Petition for Writ of Mandamus and Compl. for Declaratory and Injunctive Relief, ECF No. 1. Plaintiffs claim that Defendants have a non-discretionary duty to adjudicate both her visa application and the related waiver eligibility under the Proclamation and implementing agency guidance. See, e.g., Compl. ¶ 86. They further claim that Defendants have unreasonably withheld that adjudication. See, e.g., id. ¶ 87. Accordingly, Plaintiffs primarily ask for a writ of mandamus and injunction under the
II. LEGAL STANDARDS
A. Subject Matter Jurisdiction under Rule 12(b)(1)
A court must dismiss a case pursuant to
In reviewing a motion to dismiss pursuant to
Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff‘s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. United States Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to
B. Failure to State a Claim under Rule 12(b)(6)
Pursuant to
When considering a
III. DISCUSSION
Defendants raise several inter-related arguments supporting their Motion. Although it is at times difficult to separate these arguments in the briefing, the Court identifies the distinct arguments and discusses them below.3
A. Mootness
First, Defendants argue that Plaintiffs’ claims are moot because her visa application itself has already been adjudicated. See Defs.’ Mot. at 14-17. In response, Plaintiffs explain that they are seeking adjudication specifically of her waiver eligibility, which they argue is part of the visa application process under the Proclamation. See, e.g., Pls.’ Opp‘n at 6-7. This Court agrees that Plaintiffs claims are not moot because Plaintiff Sharei‘s waiver eligibility has not yet been adjudicated and she does not seek to have Defendants readjudicate the initial denial of her visa application.
The jurisdiction of federal courts is limited by
Defendants argue that Plaintiffs’ claims are moot here because Plaintiff Sharei‘s “visa was already denied.” Defs.’ Mot. at 16. Defendants, however, misunderstand the relief that Plaintiffs are seeking. Plaintiffs make clear, both in their Complaint and in their briefing on this Motion, that they are specifically seeking adjudication of Plaintiff Sharei‘s waiver eligibility. See, e.g., Pls.’ Opp‘n at 5-6. Indeed, Plaintiffs acknowledge that Plaintiff Sharei‘s initial visa application was refused. See Compl. ¶ 61 (explaining that Plaintiff Sharei was “given refusal notice under section 212(f) of the US Immigration and Nationality Act” and that her “visa application was refused under the Presidential Proclamation“); Pls.’ Opp‘n at 5 (“Plaintiffs do not dispute that Plaintiff Sharei received a 212(f) refusal of her visa application, but clearly that refusal is not final and her application remains pending further administrative processing.“). To the extent that Plaintiffs phrase their requested relief as adjudication of her visa application, Plaintiffs do so because they view the waiver eligibility determination as part of the visa application process. See, e.g., Compl. ¶ 63 (explaining that online visa status check lists her case as “currently undergoing necessary administrative process“); id. at Prayer for Relief ¶¶ A-C (including “waiver eligibility” specifically in relief requested); Pls.’ Opp‘n at 5 (“This deliberate and intentional language clearly indicates that waiver consideration is part of the visa adjudication process and must be completed before a final decision can be made.“).
In light of Plaintiffs’ clarifications in their Complaint and briefing, this Court need not consider at this juncture whether the waiver eligibility determination should be considered part of the overall visa adjudication process. According to Plaintiffs, they primarily seek injunctive relief related to Plaintiff Sharei‘s waiver eligibility. That they view this as part of the broader visa adjudication process is irrelevant to this argument because Defendants admit that her waiver eligibility has not yet been determined. See Defs.’ Mot. at 2 (“Plaintiff Sharei‘s application for a waiver remains under consideration[.]“); see also Dybdahl Decl., ECF No. 10-3, ¶ 6 (“Ms. Sharei is undergoing consideration for a waiver of the Proclamation‘s entry restrictions.“). Accordingly, her claims seeking adjudication of that eligibility are not moot.
B. Consular Nonreviewability
Defendants’ second major argument is that Plaintiffs’ claim is not reviewable
“Normally a consular official‘s discretionary decision to grant or deny a visa petition is not subject to judicial review.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997). Courts do not typically have subject-matter jurisdiction to review decisions of consular officers to deny visas because the
That is what Plaintiffs seek here. Plaintiffs do not challenge the initial denial of Plaintiff Sharei‘s visa application. See, e.g., Pls.’ Opp‘n at 3 (explaining that Plaintiffs’ claims specifically target “indefinite delay in the adjudication” of her visa application). Instead, in Plaintiffs’ own words, they challenge “not a visa denial, but rather the failure of Defendants to, properly and within a reasonable time, perform their mandatory, non-discretionary duty to adjudicate Plaintiff Sharei‘s visa application and waiver, which clearly remains pending and has not been denied.” Id. at 4. As explained above, Plaintiffs refer to the visa application process as a whole but are specifically concerned with Plaintiff Sharei‘s waiver eligibility, which they view as part of the overall visa application process. See id. Defendants provide scant support for their extension of the consular nonreviewability doctrine from judicial review of visa decisions to the alleged withholding of a visa or waiver decision. Their references to Trump v. Hawaii, in which the Supreme Court upheld the Proclamation against several challenges and discussed the discretion given to the President in the
Nor does the doctrine suggest that such an extension is appropriate. The limited scope of the doctrine exists because “it protects the prerogative of the political branches to regulate the manner in which aliens may enter the United States.” Nine Iraqi Allies, 168 F. Supp. 3d at 290. But “[w]hen the Government simply declines to provide a decision in the manner provided by Congress, it is not exercising its prerogative
C. Committed to Agency Discretion
Defendants next argue that Plaintiffs’ claims cannot succeed because they are challenging agency action “committed to agency discretion by law,” which is exempted from review under the
The
Section 701(a)(2) “provides a ‘very narrow exception’ that applies only in ‘rare instances.‘” Cody v. Cox, 509 F.3d 606, 610 (D.C. Cir. 2007) (quoting Volpe, 401 U.S. at 410). Courts “begin with the strong presumption that Congress intends judicial review of administrative action, and that the court will not deny review ‘unless there is persuasive reason to believe that such was the purpose of Congress.‘” Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1343-44 (D.C. Cir. 1996) (citation omitted) (quoting Dickson v. Sec‘y of Defense, 68 F.3d 1396, 1401 (D.C. Cir. 1995)). To determine whether an action is committed to agency discretion, courts consider “both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards for reviewing that action.” Sec‘y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006) (internal quotation marks omitted).
Defendants here first suggest that because the Proclamation is not subject to the
Nor does the exception apply here, as there are meaningful standards and law to apply. Defendants propose that because there is no “statutory or regulatory entitlement to any particular process by which or timeframe within which an applicant is considered for waiver,” the committed to agency discretion exception applies. Defs.’ Mot. at 10. Plaintiffs do not contest that there is no strict timeframe set by the Proclamation or agency guidance for processing waivers. Instead, Plaintiffs argue that the general
1. Reasonable Timeframe
Sections 555(b) and 706(1) of the
- the time agencies take to make decisions must be governed by a “rule of reason“;
- 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;
- delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
- the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
- the court should also take into account the nature and extent of the interests prejudiced by delay; and
- 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, 190 F.3d 545, 549 (D.C. Cir. 1999) (internal quotation marks omitted). The D.C. Circuit has explained that the first factor—that “the time agencies take to make decisions must be governed by a rule of reason“—is the most important. In re Core Commc‘ns Inc., 531 F.3d at 849 (internal quotation marks omitted).
At the motion to dismiss stage, this Court need not consider whether the agency delay alleged here is unreasonable. Undergoing such a fact-specific inquiry at this stage would be premature.4 See, e.g., M.J.L. v. McAleenan, No. A-19-CV-00477-LY, 2019 WL 6039971, at *6 (W.D. Tex. Nov. 13, 2019) (finding that “at the motion to dismiss stage and before discovery has been completed,” it would be “premature to address these [TRAC] factors“); Hamandi v. Chertoff, 550 F. Supp. 2d 46, 54 (D.D.C. 2008) (“While the court has jurisdiction over USCIS, the determination of whether an agency‘s delay is unreasonable is a fact specific inquiry that is premature at this stage of the proceedings.“); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court.“).
However, these factors shed light on what is required for Plaintiffs’ claims to survive Defendants’ arguments. In short, Defendants argue that there is no timeframe that this Court can apply to consider whether the action is unreasonably delayed. But that is not the case. There does not need to be a more specific timeframe for a claim brought under the
2. Duty to Consider Waivers
Moreover, Defendants suggest that there is no mandatory duty to determine waiver eligibility for applicants. Contrary to Defendants’ arguments, Plaintiffs have sufficiently demonstrated that the agency does not have discretion on whether to consider certain individuals for waivers. This is made clear not only by the text of the Proclamation itself, but also by the guidance issued regarding the waiver process. The Proclamation explains that
The Department of State‘s internal guidance discusses the waiver program. Exhibit A to Plaintiffs’ Opposition is internal guidance issued by the agency on January 23, 2018; it is titled “Operational Q&As on P.P. 6645 in light of the U.S. Supreme Court orders of December 4, 2017, lifting lower court injunctions and pursuant to guidance in 17 STATE 97682.” Pls.’ Exhibits Ex. A at 1. Defendants do not challenge—or even specifically address—Exhibit A. At several points, the guidance makes clear that when an applicant meets certain requirements, they must be considered for a waiver. For example, one question and answer pair states that:
Q4: Does the consular officer have to consider a waiver for every applicant who is subject to the restrictions of the P.P., otherwise eligible for a visa and to which an exception does not apply?
A: Yes, each applicant who meets the conditions described in the question posed above must be considered for a waiver, based on the purpose of travel and any other information provided by the applicant. However, if the applicant fails to meet any one of the three waiver criteria outlined in PP 9645, the officer may proceed to refuse the case under refusal code EO17. Consular officers should check the appropriate box on the visa denial letter given to applicants subject to the P.P., indicating either that a waiver will not be granted or that waiver eligibility will be reviewed.
Pls.’ Exhibits Ex. A at 8 (emphasis added). In response to a question regarding “how long . . . it take[s] to issue a waiver,” the guidance explains that “[t]he granting of a waiver under the P.P. is a decision that is made by the consular officer and the manager as part of the adjudication.” Id. Ex. A at 20 (emphasis added). Later in the document, when discussing visa refusals, the guidance explains that before an applicant can be refused under the Proclamation, the officer “must determine whether the applicant may qualify for a waiver.” Id. Ex. A at 26. Officers must provide applicants with a “refusal letter indicating either that a waiver will not be granted or waiver eligibility is under review,” and the internal guidance provides exact language to be used in those letters. Id. at 26-27. That language explains that applicants under waiver consideration ”will be contacted with a final determination on [their] visa application[s] as soon as practicable.” Id. Ex. A at 27 (emphasis added). This exact language was present in the letter that Plaintiff Sharei received. See ECF No. 1-5. Taken together, the guidance reflects the agency‘s view that for those applicants that meet certain criteria and are under waiver consideration, a decision on the waiver must ultimately be made.
The Department of State‘s external guidance, issued after the Supreme Court‘s June 26, 2018 decision in Trump v. Hawaii and which is available on the agency‘s website, demonstrates the same.5 For instance,
Furthermore, the Supreme Court‘s opinion in Trump v. Hawaii further reflects this understanding that consular officers must consider—and ultimately determine—whether applicants qualify for a waiver. See, e.g., Trump v. Hawaii, 138 S. Ct. at 2422 (explaining that “consular officers are to consider in each admissibility determination whether the alien demonstrates” requirements for waiver); see also Motaghedi, 2020 WL 207155, at *7 (“As several courts have recognized, in upholding the constitutionality of PP 9645, the Supreme Court relied in part on the waiver program[.]“); Emami v. Nielsen, 365 F. Supp. 3d 1009, 1013 (N.D. Cal. 2019) (“The allowance for waivers in the Proclamation was an important reason why the five-justice majority upheld it as serving a legitimate national security interest.“).
Defendants do not respond directly to the guidance referenced by Plaintiffs, other than to suggest that there is no entitlement to a decision on a waiver because there is discretion on whether a waiver may be granted, and that discretion is committed entirely to the executive branch. See Defs.’ Reply at 3-7. For example, Defendants propose that “[t]he processing of a waiver application is committed entirely to agency discretion by Presidential Proclamation 9645—a presidential action that is not subject to the APA or Mandamus given the absence of a nondiscretionary duty.” Defs.’ Mot. at 11. They also suggest that the Proclamation‘s disclaimer that it does not create private rights precludes Plaintiffs from bringing suit.6 Defs.’ Mot. at 12.
Defendants’ arguments in this vein also ignore that an agency may be bound by its own policies, and that Plaintiffs here are arguing (among other things) that Defendants are bound by their own implementing policies to issue waiver decisions. See, e.g., Pls.’ Opp‘n 4-6, 8-9, 14-15; see also Compl. ¶ 114 (referencing Accardi doctrine). In fact, “[i]t is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that limit its discretion.” Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). This doctrine stems from the case of United States ex rel. Accardi v. Shaunessy, 347 U.S. 260 (1954). ”Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. F.A.A., 393 F.3d 1330, 1336 (D.C. Cir. 2005); see Steenholdt v. F.A.A., 314 F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to follow their own rules, even gratuitous procedural rules that limit otherwise discretionary actions.“); Damus v. Nielsen, 313 F. Supp. 3d 317, 335-38 (D.D.C. 2018) (explaining connection between Accardi doctrine and APA cases). In fact, “in the immigration context,” courts have found that “the Accardi doctrine‘s ‘ambit is not limited to rules attaining the status of formal regulation,’ and that it can be applied to internal agency guidance.” Damus, 313 F. Supp. 3d at 336 (quoting Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991)). The D.C. Circuit has explained that “an agency pronouncement is transformed into a binding norm if
If an
Accordingly, Plaintiffs have sufficiently shown that the challenged decisions do not qualify for the committed to agency discretion exception under the
D. Mandamus Act
Defendants also challenge Plaintiffs’ claims brought under the
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss. An appropriate Order accompanies this Memorandum Opinion.
Date: January 22, 2020
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
Notes
The Court‘s consideration has focused on the following:
- Defs.’ Mot. to Dismiss (“Defs.’ Mot.“), ECF No. 10;
- Pls.’ Opp‘n to Defs.’ Mot. to Dismiss (“Pls.’ Opp‘n“), ECF No. 12, along with the related Exhibits (“Pls.’ Exhibits“), ECF No. 13;
- Notice of Errata to Pls.’ Opp‘n to Defs.’ Mot. to Dismiss (“Pls.’ Errata“), ECF No. 14; and
- Reply Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’ Compl. (“Defs.’ Reply“), ECF No. 16.
In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f).
In their Complaint, Plaintiffs also request a preliminary injunction. Compl. at Prayer for Relief ¶ A. Because Plaintiffs never moved separately for this relief and do not now seek it, the Court does not consider it here.
Defendants’ Motion references a potential due process claim by Plaintiffs. Defs.’ Mot. at 3. However, because Defendants do not develop this argument other than a brief mention in their preliminary statement, and because it is unclear whether Plaintiffs even allege a due process claim, the Court does not consider this argument here.
Defendants separately argue that Plaintiffs’ claims must be dismissed because the delay alleged is not unreasonable. See Defs.’ Mot. at 12-13. As the Court finds that analyzing whether the delay was unreasonable would be premature at the motion to dismiss stage and before discovery has been completed, it does not reach this argument in this Memorandum Opinion.
This webpage is titled “June 26 Supreme Court Decision on Presidential Proclamation 9645,” and is available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation_9645.html (last accessed Jan. 22, 2020). Under
Note that Defendants do not clearly separate their “committed to agency discretion” argument from their broader consular nonreviewability argument and their suggestion that the Proclamation and such presidential actions more generally are not reviewable under the APA, which makes untangling the support and reasoning underlying Defendants’ arguments more difficult. See, e.g., Defs. Mot. at 10-12. The Court therefore addresses some of these arguments together in this Memorandum Opinion.