Didban v. Pompeo

• Decision Date: 15 January 2020
• Docket Number: Case No. 19-cv-881 (CRC)
• Parties: Saman DIDBAN, et al., Plaintiffs, v. Michael R. POMPEO, et al., Defendants.
• Court: U.S. District Court — District of Columbia

435 F.Supp.3d 168

Saman DIDBAN, et al., Plaintiffs,

v.Michael R. POMPEO, et al., Defendants.

Case No. 19-cv-881 (CRC)

United States District Court, District of Columbia.

Signed January 15, 2020

Jennifer E. Nimer, Nimer Law LLC, Powell, OH, for Plaintiffs.

Brian J. Field, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Presidential Proclamation 9645 bans citizens of seven countries, including Iran, from entering the United States. But it allows consular officers to waive that restriction on a case-by-case basis. Plaintiffs Saman Didban, a United States legal permanent resident, and his wife, Fataneh Rostami, an Iranian national, submitted a waiver application two years ago that the Government has not yet processed. Arguing that this delay is unreasonable, Plaintiffs seek to compel the Government, under the Administrative Procedure Act and the Mandamus Act, to reach a decision on Ms. Rostami's application. Finding that the Government's delay is not unreasonable in light of the circumstances, the Court will grant the Government's motion to dismiss.

I. Background

A. Legal Background

Under the Immigration and Nationality Act ("INA"), a U.S. citizen or legal permanent resident who wishes to bring a foreign national spouse to the United States must begin the immigration process by filing a Petition for Alien Relative (form I-130) with the United States Customs and Immigration Service ("USCIS"). 8 U.S.C. § 1154. If USCIS confirms that the I-130 form meets the threshold requirements, it sends the petition to the U.S. embassy with jurisdiction over the foreign spouse's residence. See 8 C.F.R. § 204.1(a)(1). The foreign spouse must then submit an Online Immigrant Visa and Alien Registration Application (form DS-260) and appear for an interview with a consular officer at the embassy.

At the conclusion of the interview, "the consular officer must [either] issue [or] refuse the visa ...." 22 C.F.R. § 42.81(a). "If the consular officer refuses the visa, he or she must inform the applicant of the provisions of law on which the refusal is based, and of any statutory provision under which administrative relief is available." 9 Foreign Affairs Manual ("FAM") § 504.1-3(g). "If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered." 22 C.F.R. § 42.81(e). At all times, the alien bears the burden of establishing that she "is not inadmissible" and "that [s]he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed." 8 U.S.C. § 1361.

The INA grants broad authority to the President to control the admission of aliens. It states:

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.

Id. § 1182(f). In September 2017, President Trump exercised this authority by signing Presidential Proclamation 9645, " 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) ("the Proclamation"). The Proclamation arose out of the Secretary of Homeland Security's finding that "a small number of countries ... remain deficient ... with respect to their identity-management and information-sharing capabilities, protocols, and practices" and that these deficiencies prevent the United States from adequately assessing whether foreign nationals from those countries pose national security threats. Id. at 45,161. With limited exceptions not at issue here, the President banned entry into the United States by nationals of seven countries, including Iran. Id. at 45,162, 45,165 -67. Following several iterations of the restrictions and extensive litigation in the lower federal courts, the Supreme Court ultimately upheld the constitutionality of the present version of the ban. Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2423, 201 L.Ed.2d 775 (2018).

The Proclamation provides for waiver of its restrictions in individual cases. "[A] consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner's designee, 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...." Proclamation, 82 Fed. Reg. at 45,168. "A waiver may be granted only if a foreign national demonstrates to the consular officer's or CBP official'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." Id.

The President did not instruct the Secretary of State and Secretary of Homeland Security on how they should implement this waiver provision, instead simply directing them to "coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants." Id. The Proclamation does, however, include specific examples of when the award of a waiver would be appropriate. These examples include when a foreign applicant "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, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa," and for whom "the denial of entry would cause ... undue hardship." Id. at 45,169. As of September 2019, 9,473 waivers had been issued to visa applicants otherwise barred from entry by the Proclamation, while some 15,000 applicants remain under review. See U.S. Dep't of State, Implementation of Presidential Proclamation 9645 at 3 (Sept. 2019) (explaining that "nearly a third" of the 45,662 currently ineligible visa applicants "are likely to be issued visas, pursuant to waivers of P.P. 9645, following completion of national security checks").¹

B. Ms. Rostami's Visa and Waiver Applications

On November 24, 2015, Mr. Didban filed an I-130 Petition on behalf of his wife, Ms. Rostami. Compl. ¶ 57. On July 16, 2017, Ms. Rostami submitted her DS-260 form, along with the applicable fees and documents.

Id. ¶ 58. On December 3, 2017, Ms. Rostami submitted Supplemental Questions for Visa Application form (D-5535), after receiving a request from the embassy to do so. Id. ¶ 59.

On December 28, 2017, Ms. Rostami was interviewed by a consular officer of the U.S. Embassy in Ankara, Turkey. Id. ¶ 60. During the interview, she attempted to give the consular officer a statement explaining her eligibility for waiver but, according to her, the consular officer refused to accept the document, explaining that she did not need to file anything in order to be considered for waiver. Id. ¶ 62. At the conclusion of the interview, Ms. Rostami's visa application was refused pursuant to the Proclamation. Id. ¶ 62; Exh. E. After making an initial assessment that Ms. Rostami appeared to meet the first two prongs of the waiver analysis (personal hardship and national interest), the officer referred her waiver application for further review regarding whether her entry would "pose a threat to the national security or public safety of the United States." Proclamation, 82 Fed. Reg. at 45,168. Since then, USCIS has listed her waiver application as undergoing administrative processing. Compl. ¶¶ 64–65. The Government has informed Ms. Rostami that applying for a waiver "can be a lengthy process, and until the consular officer can make an individualized determination on these three factors, your visa application will remain refused under Section 212(f). You will be contacted with a final determination on your visa application as soon as practicable." Id. Exh. H.

On March 27, 2019, after waiting fifteen months for a decision from USCIS, Plaintiffs filed a petition for writ of mandamus and complaint for declaratory relief in this Court. Plaintiffs do not seek to compel the Government to grant Ms. Rostami a waiver, but merely "challeng[e] the Embassy's authority to refuse to adjudicate Plaintiff Rostami's immigrant visa application." Id. ¶ 13. Plaintiffs request an order directing the Government to adjudicate Ms. Rostami's waiver application. According to Plaintiffs, a declaratory judgment would be proper under the Administrative Procedure Act ("APA"), which grants courts the authority to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Alternatively, they seek a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, which grants district courts jurisdiction to hear "action[s] in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Id. 33–34 (quoting 28 U.S.C. § 1361 ).

The Government moves to dismiss Plaintiffs' claims. It raises various objections under Federal Rule of Civil Procedure 12(b)(1) to this Court's subject matter jurisdiction. Even assuming that this Court has jurisdiction, the Government also argues that Plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) because the two-year delay in adjudicating Ms. Rostami's waiver application is not unreasonable.

II. Standard of Review

When analyzing a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the Court "assume[s] the truth of all material factual...