Emami v. Nielsen, Case No. 18-cv-01587-JD

• Decision Date: 04 February 2019
• Docket Number: Case No. 18-cv-01587-JD
• Citation: 365 F.Supp.3d 1009
• Parties: Farangis EMAMI, et al., Plaintiffs, v. Kirstjen NIELSEN, et al., Defendants.
• Court: U.S. District Court — Northern District of California

365 F.Supp.3d 1009

Farangis EMAMI, et al., Plaintiffs,

v.Kirstjen NIELSEN, et al., Defendants.

Case No. 18-cv-01587-JD

United States District Court, N.D. California.

Signed February 4, 2019

Sirine Shebaya, Johnathan James Smith, Joseph E Saei, Nimra Azmi, Muslim Advocates, Washington, DC, Mark Dale Rosenbaum, Public Counsel, Los Angeles, CA, Veronica Sustic, Shabnam Lotfi, Lotfi Legal LLC, Madison, WI, Luis Alberto Cortes Romero, Immigrant Advocacy & Litigation Center, PLLC, Kent, WA, for Plaintiffs.

August Flentje, P. Angel Martinez, Stacey Ilene Young, United States Department of Justice, Washington, DC, for Defendants.

ORDER RE MOTION TO DISMISS

Re: Dkt. No. 42

JAMES DONATO, United States District Judge

This case is a putative class action brought by thirty-six named plaintiffs against the United States Department of Homeland Security, the Department of State, the agencies for Customs and Border Protection and Citizenship and Immigration Services, and their senior leaders. Dkt. No. 34. Plaintiffs challenge the government's conduct in connection with a waiver program that would permit the entry into the United States of foreign nationals banned by Presidential Proclamation 9645. This order resolves defendants' motion to dismiss plaintiffs' complaint, which was brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 42.

BACKGROUND

I. THE LEGAL CONTEXT

The complaint arises out of 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 Trump signed on September 24, 2017. 82 Fed. Reg. 45161 (2017) (the "Proclamation"). The President states that he issued the Proclamation after ordering a "worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat." 82 Fed. Reg. at 45161. The Secretary of Homeland Security concluded from the review that "a small number of countries ... remain deficient ... with respect to their identity-management and information-sharing capabilities, protocols, and practices." Id. To advance the "policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices," the President ordered a sharp curtailment, and in some cases a complete suspension, of entry into the United States by nationals of eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id. at 45162, 45165-67.

The complaint focuses on Iran, Libya, Somalia, Syria and Yemen. Dkt. No. 34 ¶ 4.¹ For Iranian nationals, the President limited entry into the United States to holders of visas for students (F and M) or exchange visitors (J), and no others. 82 Fed. Reg. at 45165. For Libyan nationals, the President suspended all immigrant entry, and nonimmigrant entry on business (B-1), tourist (B-2) and business/tourist (B-1/B-2) visas. Id. at 45166. For Somali nationals, the President suspended all entry into the United States as immigrants, and required "additional scrutiny" of nonimmigrant entry for ties to terrorist organizations or other threats to the United States. Id. at 45167. For nationals of Syria, entry as immigrants and nonimmigrants was suspended in toto. Id. at 45166. For Yemeni nationals, entry as immigrants was suspended, as well as entry as nonimmigrants on business (B-1), tourist (B-2) and business/tourist (B-1/B-2) visas. Id. at 45167.

The President also ordered the waiver program that is at the center of this dispute. As Section 3(c) of the Proclamation provides, "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...." 82 Fed. Reg. at 45168. "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. (Sec. 3(c)(i) ).

The President directed the Secretary of State and the Secretary of Homeland Security to "coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants." Id. (Sec. 3(c) ). The Proclamation left the format of the guidance up to the agencies, but provided examples of circumstances when a waiver would be appropriate. These situations included a foreign national who "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 45169 (Sec. 3(iv)(D) ). They also included a "foreign national [who] seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations." Id. (Sec. 3(iv)(C) ).

A lawsuit brought in this circuit challenged the legality of the Proclamation, but the United States Supreme Court upheld it as a proper exercise of the President's discretion to suspend the entry of aliens into the United States under Section 1182(f) of the Immigration and Nationality Act. Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 2392, 2408, 201 L.Ed.2d 775 (2018). The plaintiffs had sought to enjoin the Proclamation on the grounds, among others, that it was issued "for the unconstitutional purpose of excluding Muslims" in violation of the Establishment Clause of the First Amendment. Id. at 2415. The Supreme Court concluded that the plaintiffs were not likely to succeed on the merits. The Court applied a rational basis review to find that "the entry policy is plausibly related to the Government's stated objective to protect the country and improve vetting processes." Id. at 2420-23. The Court also assumed without deciding that the plaintiffs' statutory claims could be heard notwithstanding the doctrine of consular nonreviewability. Id. at 2407.

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. The majority cited the waiver program as one of "three additional features" of the President's policy -- along with the subsequent removal of restrictions on three "Muslim-majority" countries and an allowance for "significant exceptions" for nonimmigrant entry -- that effectively dispelled concerns of religious animus or discrimination in the Proclamation. Id. at 2422. The majority put substantial emphasis on the fact that DHS and the State Department were directed to "issue guidance elaborating upon the circumstances that would justify a waiver," in the apparent expectation that this would establish a program similar to the "humanitarian exceptions" implemented by President Carter during the Iran hostage crisis. Id.

The four dissenting justices took a different view. Most relevant here is Justice Breyer's attention to the majority's observations about the waiver program. He suggested that, while the words might be reassuring, the incipient evidence available to the Court indicated that waivers were not being granted in practice. At the least, this evidence raised a serious question about whether the program was mere "window dressing." Id. at 2432-33. This matters because, if the government was not in fact actually administering the waiver program, "its argument for the Proclamation's lawfulness becomes significantly weaker." Id. at 2430.

II. THE FACTUAL CONTEXT

That is the main legal context of the complaint. The factual circumstances are provided by a number of State Department statements about the Proclamation and the waiver program that are attached to the complaint and incorporated by reference, and so are properly considered for the motion to dismiss. To start, on December 4, 2017, the Department posted on its website an informational statement about the Proclamation that included some "Frequently Asked Questions" and the answers to those questions. The post included these statements: "In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant ... may be eligible for a waiver under the Proclamation and therefore issued a visa." Dkt. No. 34-4 (Ex. C) at ECF p. 4. "As specified in the Proclamation, consular officers may issue a visa based on a listed waiver category to nationals of countries identified in the PP on a case-by-case basis, when they determine: that issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship.

There is no separate application for a waiver. An individual who seeks to travel to the United States should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is eligible for a waiver." Id. at ECF p. 6.

On April 10, 2018, the Department posted to its website about "Revisions to Presidential Proclamation 9645." Dkt. No. 34-7 (Ex. F). It explained that "[t]he new P.P. removes the visa restrictions imposed on nationals of Chad by the earlier P.P." Id. at ECF p. 2. The new statement once again affirmed that "[a]s specified in the Proclamation, consular officers may issue a visa based on a listed waiver category to nationals of countries identified in the PP on a case-by-case basis, when they determine" the waiver factors are satisfied. Id. at ECF...