Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MATTHEW THOMAS et al.,
Plaintiffs, v. Civil Action No. 19-cv-1050 (ESH) MICHAEL RICHARD POMPEO et al.,
Defendants . MEMORANDUM OPINION
Plaintiffs Matthew Thomas and Akbar Masoumi bring this action against (1) Michael Richard Pompeo, in his official capacity as United States Secretary of State; (2) the United States Department of State; (3) Christopher A. Wray, in his official capacity as Director of the Federal Bureau of Investigation; (4) the Federal Bureau of Investigation; (5) Steven C. Bondy, in his official capacity as Charge d’Affaires to the United Arab Emirates; and (6) the United States Embassy in Abu Dhabi (collectively, “defendants”), to compel them to complete administrative processing and adjudicate Mr. Masoumi’s visa application, which was filed over three years ago. Plaintiffs argue it has been unreasonably delayed and request relief pursuant to either the Mandamus Act, see 28 U.S.C. §1361, or the Administrative Procedure Act, see 5 U.S.C. § 701 et seq. ( See Compl. at 9–10 [ECF 4].) Before the Court is defendants’ motion to dismiss. ( See Mot. to Dismiss [ECF 15].) For the reasons stated herein, the Court will deny defendants’ motion.
BACKGROUND
I. FACTUAL BACKGROUND
A. Presidential Proclamation 9645
On September 24, 2017, President Donald Trump issued the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” 82 Fed. Reg. 46,161 (“the Proclamation”). Pursuant to Section 212(f) of the Immigration and Nationality Act (“INA”):
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate 8 U.S.C. § 1882(f). In light of the Department of Homeland Security’s assessment that certain countries “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors,” see Proclamation Sec. 1(g), the President invoked his power under INA Section 212(f) and restricted the entry of nationals from seven countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. See id. at Sec. 1(h)(ii). For example, subject to some exceptions, the Proclamation suspended the entry of all nationals of Iran into the United States as either immigrants or non-immigrants due to the fact 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.” See id. at Sec. 2(b)(i).
The Supreme Court has since upheld the Proclamation as a valid use of this authority. See
Trump v. Hawaii ,
The Proclamation, however, provides for case-by-case waivers. See id. at Sec. 3(c). An individual otherwise banned under the Proclamation may be granted a waiver if three conditions are met: “(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.” Id. at Sec. 3(c)(i)(A)-(C). Beyond specifying these three conditions, the Proclamation “did not instruct the Secretary of State and Secretary of Homeland Security on how they should implement this waiver provision,” see Didban v. Pompeo , 2020 WL 224517, at *2 (D.D.C. Jan. 15, 2020)—instead, it provided that the Secretaries of State and Homeland Security would issue guidance to address the “standards, policies, and procedures” for determining when an individual should receive a waiver. See Proclamation at Sec. 3(c)(ii). The Proclamation did include, however, a non-exhaustive list of individuals who may be appropriate for a waiver, such as those who “seek[] to enter the United States to visit or reside with a close family member . . . who is a United States citizen.” Id. at Sec 3(c)(iv).
The State Department’s webpage on the Proclamation explains that “[t]here is no separate application for a waiver.” U.S. Dep’t of State, June 26 Supreme Court Decision on Presidential Proclamation 9645 (“State Department Guidance”),
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-
proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html
(last visited January 30, 2020). Instead, “[a]n individual who seeks to travel to the United States
When considering a motion to dismiss, the Court may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint, or
documents upon which the plaintiff's complaint necessarily relies.” Ward v. D.C. Dep’t of Youth
Rehabilitation Servs. ,
B. Mr. Masoumi’s Visa Application
Mr. Thomas, a United States citizen, filed a visa petition on January 6, 2017, on behalf of his fiancé, Mr. Masoumi, an Iranian citizen. ( Compl. ¶ 15.) The petition was approved by USCIS on April 24, 2017. ( See id. ¶ 16.) Mr. Masoumi attended an interview at the United States Embassy in Abu Dhabi on August 16, 2017. ( See id. ) “At the end of his interview, the adjudicating officer gave Mr. Masoumi a document which stated that his ‘visa application is temporarily refused under section 221(g) of the US Immigration and Nationality Act’ pending the completion of administrative processing.” ( Id. ¶ 17.) The same day, the Embassy emailed Mr. Masoumi a questionnaire seeking information “such as 15 years of travel, address, and employment history; the names and dates of birth of his siblings; and his social media account handles”—Mr. Masoumi completed and returned the survey later that day. ( Id. ¶ 18.)
Plaintiffs made several inquiries about the status of Mr. Masoumi’s visa application over
the course of the next several months, with no “meaningful response.” ( Id. ¶ 19.) Instead,
almost eight months after Mr. Masoumi’s interview, the Embassy sent him the same
questionnaire and again requested that he fill it out; and again, Mr. Masoumi completed and
official public websites of government agencies.” Moghaddam v. Pompeo ,
returned it the same day. ( See id. ¶ 21.) Eventually, Mr. Thomas reached out to United States Senator Tammy Duckworth, who also reached out to the Embassy on plaintiffs’ behalf. ( See id. ¶ 22). On October 22, 2018, Senator Duckworth’s office received a response to one of its inquiries from the Embassy, which said that “Mr. Masoumi’s case is undergoing administrative processing in order to qualify for a waiver under Presidential Proclamation 9645.” ( See id. ¶ 23 (internal quotation marks omitted).) A later request for information by Mr. Thomas was met with the following response—“[t]here is no need for you to write, email, call or fax the Embassy with inquiries on the case, as that will not speed processing.” ( Id. ¶ 25 (internal quotation marks omitted).)
After waiting more than nineteen months for the adjudication of Mr. Masoumi’s visa application and waiver, which they describe as “a time-consuming and anxiety-inducing process” ( id. ¶ 30), plaintiffs filed an action in this Court in April 2019. Plaintiffs alleged “that [they] live every day in fear that Mr. Masoumi’s family, his neighbors, or his government will find out that he is in a same-sex relationship with an American and that he will suffer violence or death as a result.” ( Id. ¶ 30.) Plaintiffs thus requested that this Court “[o]rder Defendants and those acting under them to take all appropriate action to adjudicate Plaintiffs’ petition for a fiancé(e) visa without further delay” under the Administrative Procedure Act or the Mandamus Act. ( Id. ¶ 47.) Defendants have now filed a motion to dismiss, citing inter alia , the doctrine of consular nonreviewability, mootness, and the failure of plaintiffs to state a claim under either the APA or the Mandamus Act.
ANALYSIS
I. LEGAL STANDARDS
“A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject
matter jurisdiction.” Moghaddam v. Pompeo ,
“Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it
‘fail[s] to state a claim upon which relief can be granted.’” ,
II. CONSULAR NONREVIEWABILITY
First, defendants argue that the Court must dismiss plaintiffs’ case on the grounds of
consular nonreviewability, which precludes review of consular officers’ decisions on visa
applications. See Saavedra Bruno v. Albright ,
Nevertheless, the Court agrees with the other two judges in this district who have
considered this issue and have concluded that the doctrine does not extend so far as to address
the situation here. See Moghaddam ,
III. MOOTNESS
Defendants next argue that plaintiffs’ case cannot be heard because it is moot. ( Mot.
to Dismiss at 15–17.) “Federal courts lack jurisdiction to decide moot cases because their
constitutional authority extends only to actual cases or controversies.” Conservation Force, Inc.
v. Jewell ,
deciding [a case] if events have so transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of affecting them in the future.” 21st
Century Telesis Joint Venture v. FCC ,
Again, the Court agrees with the two judges in this district who have addressed mootness
in this situation and have declined to dismiss on mootness grounds. Defendants correctly
observe that “where a plaintiff seeks to compel the immigration authorities to adjudicate an
application for immigration benefits, and the application is thereafter adjudicated, the case is
moot and must therefore be dismissed for lack of subject matter jurisdiction.” (Mot. to Dismiss
at 17.) But that is not the case here, for plaintiffs’ application has not been finally adjudicated.
Like the plaintiffs in , plaintiffs here “are specifically seeking adjudication of . . .
waiver eligibility,” not of their visa application.
IV. ADMINISTRATIVE PROCEDURE ACT
Defendants next argue that plaintiffs have not stated a claim under the Administrative Procedure Act. Although defendants’ arguments are at times difficult to parse, it appears they are making the following arguments: (1) review is barred under the APA because review over the issues in this case is precluded by the doctrine of consular nonreviewability; (2) review is barred under the APA because waiver and visa applications are “committed to agency discretion,” see 5 U.S.C. § 701(a)(2); and (3) as a matter of law, plaintiffs have not suffered an “unreasonable delay.” See id. § 706.
At the outset, the Court rejects defendants’ argument that 5 U.S.C. § 701(a)(1) and § 702, which limit APA review based on other statutes or limitations pre-dating the APA, preclude review here. As noted above, the consular nonreviewability doctrine, upon which defendants primarily base this argument, does not apply. And defendants’ argument that “it is implausible that Congress would permit review of Executive decisions to restrict entry in the first instance” is not reflective of the issue in this case—plaintiffs do not seek review of the executive decision ( i.e. the Proclamation) itself, but the adjudication of a waiver application.
Next, the Court disagrees that this issue is committed to agency discretion. First, 5
U.S.C. § 701(a)(2) is “a very narrow exception that applies only in rare instances.” Cody v. Cox ,
Moreover, just because the Proclamation “is not intended to, and does not, create any
right or benefit,” see Proclamation at Sec. 9(c), does not mean that the defendants have
completely unchecked discretion. Plaintiffs cite to guidance released by the State Department
saying that “[a] consular officer will carefully review each case to determine whether the
applicant is affected by the Proclamation and, if so, whether the applicant qualifies for an
exception or a waiver.” State Department Guidance, supra (emphasis added); cf. Trump v.
Hawaii ,
discretion to never act on a waiver application.” ,
Lastly, although neither the Proclamation nor any other source of law provides a timeline
by which waivers are to be adjudicated, that is not fatal to plaintiffs’ claim. “[A] lack of
timeframe alone does not render the statute optional.” M.J.L. ,
(1) [T]he 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.
Telcommc’n Research & Action Ctr. v. FCC ,
V. MANDAMUS
As noted above, the Court has found that plaintiffs stated a claim under the
Administrative Procedure Act for unreasonable delay. As a result, the Court need not address
plaintiffs’ mandamus claim at this time. See Fornaro v. James ,
CONCLUSION
For the foregoing reasons, the Court concludes that it has jurisdiction to hear this case, and that plaintiffs have stated a claim under the APA. As a result, the Court denies defendants’ motion to dismiss. A separate Order accompanies this Memorandum Opinion.
_______________________ ELLEN S. HUVELLE United States District Judge Date: February 7, 2020
Judge Cooper applied the TRAC factors and concluded that “Plaintiffs have failed to establish that the two-year delay in processing [the] waiver application is unreasonable.” Didban , 2020 WL 224517, at *6. While defendants in this case may also ultimately prove that the delay in adjudicating Mr. Masoumi’s waiver application is not unreasonable, the Court concludes that undertaking such a fact-bound analysis at this stage is premature.