Alharbi v. Miller

• Decision Date: 26 March 2019
• Docket Number: 18-cv-2435 (BMC)
• Citation: 368 F.Supp.3d 527
• Parties: Ahmed ALHARBI, et al., Plaintiffs, v. Stephen MILLER, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

368 F.Supp.3d 527

Ahmed ALHARBI, et al., Plaintiffs,

v.Stephen MILLER, et al., Defendants.

18-cv-2435 (BMC)

United States District Court, E.D. New York.

Signed March 26, 2019

Abadir Jama Barre, Pro Hac Vice, Julie A. Goldberg, Pro Hac Vice, Rafael Urena, Goldberg & Associates, Bronx, NY, for Plaintiffs.

Farzin Franklin Amanat, Joseph Anthony Marutollo, U. S. Attorney's Office, Brooklyn, NY, Joshua Samuel Press, Michael Huston, U.S. Dep't of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Plaintiffs bring this action under the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101 et seq. ; the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. ; Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; 42 U.S.C. § 1985(3) ; and the First, Fifth, and Ninth Amendments. Plaintiffs have moved for class certification, and defendants have moved to dismiss the amended complaint. This decision disposes of both motions.

BACKGROUND

Plaintiff-petitioners are United States citizens or legal permanent residents who filed a Form I-130 Petition for Alien Relative or asylees who filed a Form I-730 Refugee/Asylee Relative Petition on behalf of an immediate relative who is a Yemeni national.¹ Plaintiff-beneficiaries are the immediate relatives on whose behalf the Form I-130 Petitions or Form I-730 Petitions were filed. They fled their homes in Yemen to escape rampant war, famine, and disease, and now reside in Djibouti.

The United States Citizenship and Immigration Services approved each plaintiff-petitioner's Form I-130 Petition or Form I-730 Petition filed on behalf of the plaintiff-beneficiaries. The Form I-130 Petitions and Form I-730 Petitions were then processed by the National Visa Center and forwarded to the United States Embassy in Djibouti (the "Djibouti Embassy"). Each plaintiff-beneficiary completed an immigrant visa interview with a consular officer at the Djibouti Embassy, after which each plaintiff-beneficiary received a piece of paper that said:

Your visa is approved. We cannot guarantee how long it will take to print it and have your passport ready for pick up. You should check the status of your visa online at: https://ceac.state.gov/ceeacstattracker/status.aspx. Please wait at least 24 hours from the point your visa is issued before returning to the Embassy on [day of the week and time].²

On September 24, 2017, before any of their visas were printed, the President released Presidential Proclamation 9645, 82 Fed. Reg. 45161, pursuant to Section 212(f) of the INA, 8 U.S.C. § 1182(f). Section 212(f) provides that:

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.

Proclamation 9645 is titled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats." It imposes certain immigration and travel restrictions on individuals from designated countries, including Yemen.

Section 6(c) of the Proclamation, however, is a grandfather clause. It provides that "[n]o immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation."

Section 3(c) of the Proclamation is a waiver provision. It provides in relevant part that consular officers "as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate" and consistent with several additional requirements.

Proclamation 9645 became effective on December 4, 2017, when the Supreme Court issued an order in Trump v. Hawaii, ––– U.S. ––––, 138 S.Ct. 542, 199 L.Ed.2d 382 (2017), staying a preliminary injunction issued against the Proclamation and permitting the Government to enforce it.

Once Proclamation 9645 was enforceable, the Djibouti Embassy refused plaintiff-beneficiaries' immigrant visas, stating that they were precluded by its terms. Plaintiffs challenge defendants' delay in printing their visas after their interviews, the subsequent refusal of their visas based on the Proclamation, and defendants' refusal to provide plaintiffs a Proclamation waiver.

PROCEDURAL HISTORY

Plaintiffs originally filed a complaint on behalf of 61 individuals who are members of 21 Yemeni families. Plaintiffs sought an order mandating that defendants immediately adjudicate their immigrant visa applications. The Court found that documentary and declaratory evidence suggested that 27 plaintiff-beneficiaries were issued approval notices after their consular interviews, construed those approval notices as issued visas under Section 6(c) of Proclamation 9645, and issued a preliminary injunction ordering the Government to complete any necessary security screenings for those plaintiffs and to issue visas to the individuals who cleared the assessments. Defendants complied with their obligations under the preliminary injunction.

In addition, defendants represent that the Government has sua sponte reconsidered or is in the process of reconsidering each plaintiff's visa or waiver refusal under Section 3(c) of Proclamation 9645. Most plaintiffs were issued immigrant visas as a result of this review, although some individuals were denied visas on substantive grounds of inadmissibility unrelated to Proclamation 9645, and some individuals have yet to be reconsidered.

Once defendants complied with the terms of the preliminary injunction, they moved to dismiss the complaint. Plaintiffs filed an amended complaint, adding additional plaintiffs and claims.³ The amended complaint seeks an order mandating defendants to "correctly adjudicate" their immigrant visa applications, "print and issue" the visas, and provide plaintiffs with an opportunity to submit a waiver to complete adjudication of their immigrant visa applications. The amended complaint also seeks monetary damages.

DISCUSSION

I. Motion for Class Certification

Plaintiffs seek to certify the following class under Federal Rule of Civil Procedure 23(b)(2) :

All individuals who were: 1) citizens or nationals of Yemen, Syria, Iran, Somalia, [and] Libya, [ ] 2) who received a visa approval from any US Embassy upon completion of the Plaintiff-Beneficiary's immigrant visa interview between February 25, 2016 to December 8, 2017, and 3) whose visa was not printed and/or not distributed after having been informed by the Embassy that their visa was approved.

Under Rule 23(b)(2), "[a] class action may be maintained if Rule 23(a) is satisfied and if ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Thus, "plaintiffs must meet both the requirements for the [injunctive relief sought], as well as the threshold requirements for class certification under Rule 23(a)," before a class action may be certified. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015).

Rule 23(a) has four requirements: "numerosity, commonality, typicality, and adequate representation." These "threshold" requirements "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

"The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). As the Supreme Court has made clear, " Rule 23 does not set forth a mere pleading standard." Wal-Mart, 564 U.S. at 349, 131 S.Ct. 2541. Rather, plaintiffs "must affirmatively demonstrate [their] compliance with the Rule – that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. (emphasis in original). Indeed, a class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

The crux of defendants' opposition to class certification rests on the commonality prong, so the Court will take the Rule 23(a) factors out of turn, and address commonality first.

A. Commonality

To certify a class under Rule 23(a), there must be "questions of law or fact common to the class." See Fed. R. Civ. P. 23(a)(2). Commonality requires plaintiffs to demonstrate that the class members have suffered the same injury, not just that they have suffered a violation of the same law. See Wal-Mart, 564 U.S. at 349-50, 131 S.Ct. 2541. "Their claims must depend upon a common contention," which itself "must be of such a nature that it is capable of classwide resolution." Id. In other words, the class action must have the capacity "to generate common answers apt to drive the resolution of the litigation." Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009) ).

Plaintiffs claim that their common contention – "that they had visa applications that were approved but not printed/distributed before the Proclamation came into effect and that subsequent to the Proclamation being implemented these visas were unlawfully withheld" – is capable of classwide resolution. Because plaintiffs believe that the Government has treated them according to a "seemingly uniform...