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

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: JAMES DONATO, United States District Judge
• Citation: 465 F.Supp.3d 991
• Parties: Farangis EMAMI, et al., Plaintiffs, v. Kirstjen NIELSEN, et al., Defendants. Pars Equality Center, et al., Plaintiffs, v. Mike Pompeo, et al., Defendants.
• Docket Number: Case No. 18-cv-07818-JD,Case No. 18-cv-01587-JD
• Decision Date: 05 June 2020

465 F.Supp.3d 991

Farangis EMAMI, et al., Plaintiffs,
v.
Kirstjen NIELSEN, et al., Defendants.

Pars Equality Center, et al., Plaintiffs,
v.
Mike Pompeo, et al., Defendants.

Case No. 18-cv-01587-JD
Case No. 18-cv-07818-JD

United States District Court, N.D. California.

Signed June 5, 2020

465 F.Supp.3d 993

Daniel B. Asimow, Arnold & Porter Kaye Scholer LLP, Babak G. Yousefzadeh, Pro Hac Vice, Sheppard Mullin Richter & Hampton LLP, Elica S. Vafaie, Pro Hac Vice, Javeria Jamil, Asian Americans Advancing Justice - Asian Law Caucus, San Francisco, CA, Darin M. Sands, Lane Powell PC, Portland, OR, Jessica Walder, Dustin J. O'Quinn, Pro Hac Vice, Lane Powell PC, Seattle, WA, Brittney Rezaei, Pro Hac Vice, Zahra A. Billoo, Pro Hac Vice, Council on American-Islamic Relations, Santa Clara, CA, Esther Hsiao-In Sung, Pro Hac Vice, Nicholas Espiritu, Pro Hac Vice, National Immigration Law Center, Los Angeles, CA, John A. Freedman, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, Joshua Stehlik, Pro Hac Vice, Max Samuel Wolson, National Immigration Law Center, Washington, DC, Kevin Lee Herrera, National Immigration Law Center, Chicago, IL, for Plaintiffs.

David Kim, Gisela A. Westwater, P. Angel Martinez, U.S. Department of Justice, Washington, DC, for Defendant Mike Pompeo.

David Kim, Gisela A. Westwater, P. Angel Martinez, Stacey Ilene Young, United States Department of Justice, Washington, DC, for Defendants Secretary Kirstjen M. Nielsen, Kevin K. McAleenan, Department of Homeland Security, U.S. Department of State, U.S. Customs and Border Protection.

ORDER RE MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT

Re: Dkt. No. 98

Re: Dkt. No. 120

JAMES DONATO, United States District Judge

465 F.Supp.3d 994

These related cases concern 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. 45161 (2017) (the "Proclamation"). The Proclamation sharply curtailed, and in some cases completely suspended, entry into the United States by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id. at 45162, 45165-67.¹ Plaintiffs focus on nationals of Iran, Libya, Somalia, Syria and Yemen, and challenge the government's handling of a waiver program that would allow exceptions for entry into the United States in certain circumstances. The gravamen of the complaints is that the government created guidance for waivers which it has systematically ignored to deny the vast majority of waiver applications.

The Court granted in part and denied in part a motion to dismiss in the Emami case with leave to amend, finding that plaintiffs had plausibly stated a claim under the Accardi doctrine. Dkt. No. 74 (Emami ) at 16. The heart of this claim was that "the State Department has acted arbitrarily and unlawfully by disregarding its own procedures and rules in administering the waiver program" established by the Proclamation. Id. at 14. The Emami plaintiffs filed a second amended complaint. Dkt. No. 75 (Emami ). As the Emami motion to dismiss proceedings were under way, the Pars case was transferred here from the Western District of Washington. Dkt. No. 80 (Pars ). The operative complaint in that case remains the initial complaint. Dkt. No. 1 (Pars ). Defendants have filed motions to dismiss, or to obtain summary judgment for, the second amended complaint in Emami and the complaint in Pars. Dkt. No. 98 (Emami ); Dkt. No. 120 (Pars ). This order resolves those motions.

DISCUSSION

The parties' familiarity with the record is assumed. The prior dismissal order provides a detailed statement of the case and plaintiffs' claims, and the governing standards for a motion to dismiss. Dkt. No. 74 (Emami ).

I. MOTIONS TO DISMISS

A. Pars Complaint

The Court has not been called upon to review the plausibility of the Pars complaint until now. The analysis of the Emami complaint in the dismissal order applies in full measure here, and streamlines the discussion.

1. Justiciability

The Court squarely answered the government's justiciability objection in Emami. Dismissal for lack of a justiciable controversy was denied because the Emami plaintiffs are not suing over "individual consular officer decisions on the merits ... [or] the outcome of any particular consular officer's decision in a given case." Dkt. No. 74 (Emami ) at 11-12. They are "challenging systemic practices with respect to the waiver program, and not individualized determinations for any specific person." Id. at 12. So too in the Pars complaint. See Dkt. No. 1 (Pars ); Dkt. No. 125 (Pars ) at 6 ("Plaintiffs do not seek review of any individual,

465 F.Supp.3d 995

discretionary decision by a consular officer," rather, "they seek review of the policies and practices that Defendants have adopted to implement the Proclamation"). This is a justiciable controversy properly before the Court.

2. APA Claim

Defendants' request to dismiss the APA claim in Pars is denied. Defendants say that the APA does not apply at all. Dkt. No. 120 (Pars ) at 9-10. But as the Court has already determined, the Administrative Procedure Act "creates a ‘basic presumption of judicial review for one suffering legal wrong because of agency action,’ " and our circuit has construed the APA "to provide for ‘broad judicial review of agency action.’ " Dkt. No. 74 (Emami ) at 13 (quoting Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv. , ––– U.S. ––––, 139 S.Ct. 361, 370, 202 L.Ed.2d 269 (2018), and Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec. , 908 F.3d 476, 494 (9th Cir. 2018) ). Agency action is not immunized from review just because it might be linked to a Presidential Proclamation. See East Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 770 (9th Cir. 2018) ("insofar as DOJ and DHS have incorporated the Proclamation by reference into the Rule, we may consider the validity of the agency's proposed action, including its ‘rule ... or the equivalent’ "); Chamber of Commerce of the U.S. v. Reich , 74 F.3d 1322, 1326 (D.C. Cir. 1996) ("agency regulations that implement an executive order are reviewable under the APA").

The Pars complaint is based on a final agency action properly subject to judicial review. Defendants say that plaintiffs have "fail[ed] ... to direct their complaint against any ‘final agency action,’ " Dkt. No. 128 (Pars ) at 2-3, but that is not a fair characterization of plaintiffs' complaint. The Pars plaintiffs have identified, and are challenging, a final agency action consisting of "the ‘worldwide guidance’ referenced in the State Department's February 22 letter and the State Department guidance, cables, sample Q's & A's and instructions referenced in the Richardson declaration," along with other actions taken by defendants in reliance of Section 3(c) of the Proclamation. Dkt. No. 1 (Pars ) ¶¶ 279-80. Plaintiffs further allege that these actions resulted in a waiver process in which, among other things, "visa applicants have been denied waivers without ever having received notice of a waiver process, and/or have been denied waivers without ever having had a consular interview or other opportunity to provide evidence of their eligibility for a waiver, in contravention of 22 C.F.R. §§ 41.121 and 42.81, which state that when refusing the issuance of a visa, a consular officer must inform the visa applicant ‘whether there is, in law or regulations, a mechanism (such as a waiver) to overcome the refusal.’ " Id. ¶ 281 (quoting 22 C.F.R. § 41.121(b)(1) ). Plaintiffs also allege that the government has implemented a waiver process in which "consular officers do not have discretion over whether and when to grant a waiver, and thus no discretion over whether they may grant a visa to an individual subject to the Proclamation, in contravention of the Proclamation itself as well as 8 U.S.C. § 1104(a), which states that consular officers have complete discretion over the issuance of visas and that such discretion may not be circumscribed by the Secretary of State." Id. ¶ 284.

Defendants suggest that "the Proclamation [is] the only relevant source of law in this case," Dkt. No. 128 (Pars ) at 2-3, but plaintiffs have identified a number of legal tests with which to assay the government's conduct, and defendants have not demonstrated that plaintiffs have missed the mark. In effect, plaintiffs are following Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 2392, 2408, 201 L.Ed.2d 775 (2018), where

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the Supreme Court measured the Proclamation against the provisions of the Immigration and Nationality Act, even after finding that the President had lawfully exercised his "broad discretion to suspend the entry of aliens into the United States" under § 1182(f) of that statute. See Hawaii , 138 S.Ct. at 2411 ("We may assume that § 1182(f) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation"). In this case, plaintiffs have plausibly alleged...