Moghaddam v. Pompeo

• Decision Date: 22 January 2020
• Docket Number: Civil Action No. 19-668 (CKK)
• Citation: 424 F.Supp.3d 104
• Parties: Vala MOGHADDAM and Nahid Sharei, Plaintiffs, v. Michael POMPEO et al., Defendants.
• Court: U.S. District Court — District of Columbia

424 F.Supp.3d 104

Vala MOGHADDAM and Nahid Sharei, Plaintiffs,

v.Michael POMPEO et al., Defendants.

Civil Action No. 19-668 (CKK)

United States District Court, District of Columbia.

Signed January 22, 2020

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

Rhonda Lisa Campbell, Rhonda Lisa Campbell U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Pending before the Court is Defendants' Motion to Dismiss, ECF No. 10. Defendants have moved to dismiss the operative Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief ("Compl."), ECF No. 3–1, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim. Upon consideration of the briefing,¹ the relevant legal authorities, and the record as relevant to this Motion, the Court DENIES Defendants' Motion. In particular, the Court finds that it has jurisdiction over Plaintiffs' claims under the Administrative Procedure Act ("APA") and accordingly concludes that it does not need to reach the question of whether it has jurisdiction under the Mandamus Act. Moreover, the Court finds that Plaintiffs have sufficiently pleaded the challenged claims under the APA.

I. BACKGROUND

In short, Plaintiffs allege that Defendants have denied them timely adjudication of Plaintiff Nahid Sharei's visa application and associated waiver under 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 Donald Trump signed on September 24, 2017. See 82 Fed. Reg. 45161 (2017) ("Proclamation"). The Proclamation "sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats.’ " Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2404, 201 L.Ed.2d 775 (2018) (quoting Proclamation § 1(a)). To that end, the Proclamation restricted entry for nationals of several foreign states whose systems for managing and sharing such information the President considered inadequate. See id. ; Proclamation § 2. This includes Iran, for which the Proclamation suspended entry of immigrants, with limited exceptions that are inapplicable here. See Proclamation § 2(b).

The Proclamation, however, also allows case-by-case waivers. See id. § 3(c). Under the Proclamation, a waiver is appropriate "when a foreign national demonstrates undue hardship, and that his [or her] entry is in the national interest and would not pose a threat to public safety." Trump v. Hawaii , 138 S. Ct. at 2406 ; see Proclamation § 3(c)(i). The Proclamation singles out several scenarios as circumstances in which waivers "may be appropriate," including when a "foreign national 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," specifically when "the denial of entry would cause the foreign national undue hardship." Proclamation § 3(c)(iv)(C). In describing the waivers, the Proclamation notes that waivers are "issued by a consular officer as part of the visa adjudication process." Id. § 3(c)(iii). Moreover, the Proclamation requires the Department of Homeland Security and the State Department to issue guidance "elaborating upon the circumstances that would justify a waiver." Trump v. Hawaii , 138 S. Ct. at 2423 ; see Proclamation § 3(c)(ii).

Plaintiffs here are concerned with this waiver process as applied to them. Plaintiff Vala Moghaddam is a U.S. citizen while his wife, Plaintiff Nahid Sharei, is an Iranian national. Compl. ¶¶ 21–22. They were married on January 29, 2016. Id. ¶ 55. On December 21, 2016, Plaintiff Moghaddam filed a Petition for Alien Relative (an I-130 Petition) on behalf of his wife, Plaintiff Sharei. Id. ¶ 57. The petition was approved on July 7, 2017. Id. Subsequently, on August 9, 2017, Plaintiffs paid the visa processing fees and submitted Plaintiff Sharei's Immigrant Visa Electronic Application (a DS-260 Application) for an immigrant visa with the U.S. Embassy in Ankara, Turkey. Id. She was assigned the consular case number ANK2017702009. Id.

Plaintiff Sharei was interviewed by the Consular Section of the U.S. Embassy in Ankara on January 25, 2018. Id. ¶ 59. She attempted to submit a waiver request letter pursuant to the Presidential Proclamation during the interview, but it was refused. Id. ¶¶ 59–60. Her visa application was refused under Section 212(f) of the Immigration and Nationality Act ("INA") under the Presidential Proclamation. Id. ¶ 61. She was, however, referred for waiver eligibility review under the Proclamation. Id. She therefore filled out Supplemental Questions for Visa Application (a DS-5535 form). Id. ¶ 62.

As of the date of the filing of her Complaint, Plaintiff Sharei had waited nineteen months after filing her immigrant visa application and fourteen months since her interview without any determination of whether she was eligible for a waiver under the Proclamation. Id. ¶ 63. The online status checker for her visa application explained that her case was "undergoing necessary administrative processing." Id. ; see id. Ex. F. Although Plaintiffs have inquired as to the status of her application multiple times, they have not received any useful information indicating when her waiver eligibility will be processed. Id. ¶ 82. As of the date of this Memorandum Opinion, Plaintiff has been waiting twenty-nine months (over two years) since filing her visa application and twenty-four months (around two years) since her interview to discover whether she is eligible for a waiver. See id. ¶ 63. Plaintiffs claim that as a result of their separation, they have suffered numerous emotional, psychological, and monetary harms. Id. ¶¶ 65–76.

Plaintiffs brought this suit on March 10, 2019. See Petition for Writ of Mandamus and Compl. for Declaratory and Injunctive Relief, ECF No. 1. Plaintiffs claim that Defendants have a non-discretionary duty to adjudicate both her visa application and the related waiver eligibility under the Proclamation and implementing agency guidance. See, e.g. , Compl. ¶ 86. They further claim that Defendants have unreasonably withheld that adjudication. See, e.g. , id. ¶ 87. Accordingly, Plaintiffs primarily ask for a writ of mandamus and injunction under the APA directing Defendants to adjudicate her visa application, by which Plaintiffs largely mean her waiver eligibility, within fifteen days of the order; issue a declaratory judgment that the delay in adjudicating her waiver eligibility is unreasonable and violates the APA and that she is entitled to adjudication of her visa application within fifteen days of the order; and a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, compelling Defendants to adjudicate her visa application (that is, her waiver eligibility) within fifteen days of the order.² Id. at Prayer for Relief ¶¶ A–E.

II. LEGAL STANDARDS

A. Subject Matter Jurisdiction under Rule 12(b)(1)

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (quoting Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.")

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm'n , 429 F.3d 1098, 1106 (D.C. Cir. 2005) ("At the motion to dismiss stage, counseled complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact."); Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ("We review here a decision granting a motion to dismiss, and therefore must accept as true all the factual allegations in the complaint."); Koutny v. Martin , 530 F. Supp. 2d 84, 87 (D.D.C. 2007) ("[A] court accepts as true all of the factual allegations contained in the complaint and may also consider ‘undisputed facts evidenced in the record.’ " (internal citations omitted) (quoting Mineta , 333 F.3d at 198 )).

Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. United States Envtl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) ), aff'd , 2008 WL 4068606 (D.C. Cir. Mar. 17, 2008). A court need not...