Najafi v. Pompeo
| Decision Date | 05 March 2020 |
| Docket Number | Case No. 19-cv-05782-KAW |
| Parties | SONA NAJAFI, et al., Plaintiffs, v. MICHAEL R. POMPEO, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
On September 15, 2019, Plaintiffs filed the instant suit against Defendants, challenging Defendants' alleged "withholding of adjudications of case-by-case waivers of Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Deterring Attempted Entry into the United States by Terrorists or Other Public-Safety Threats." (Compl. ¶ 1, Dkt. No. 1.)
Pending before the Court is Defendants' motion to dismiss. (Defs.' Mot. to Dismiss, Dkt. No. 48.) Having considered the parties' filings, the relevant legal authorities, and the arguments made at the March 5, 2020 motion hearing, the Court GRANTS Defendants' motion to dismiss.
Plaintiffs are U.S. citizens and lawful permanent residents ("Petitioner Plaintiffs") and their Iranian national relatives or fiancées who are visa applicants ("Beneficiary Plaintiffs"). (Compl. ¶ 2.) Beneficiary Plaintiffs have fulfilled the requirements to obtain family-based or fiancée-based visas, but their applications have been denied pursuant to Presidential Proclamation 9645 ("PP 9645"). (Compl. ¶ 3.)
PP 9645 prohibits the entry of immigrants and non-immigrants from Iran and other countries. PP 9645 § 2(b). PP 9645, however, 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 to permit the entry of foreign nationals for whom entry is otherwise suspended or limited . . . ." Id. § 3(c). A waiver may be granted if the "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. § 3(c)(i).
Plaintiffs are individuals who a consular officer has proposed a waiver for, or whose eligibility for a waiver is being reviewed. Plaintiffs allege, however, that a group within the Department of State, known as the "PP 9645 Brain Trust," has "privately promulgated guidance on the waiver adjudication scheme that is inconsistent with" PP 9645. (Compl. ¶ 137.) Specifically, Plaintiffs assert that consular officers are required to seek the concurrence of the consular manager and the Visa Office. (Compl. ¶¶ 137, 147.) Plaintiffs contend that this requirement is at odds with PP 9645 because it "unlawfully extend[s] the authority and discretion that PP 9645 granted only with individual officers to: consular managers, visa chiefs, consular section chiefs, and/or consular management and the Visa Office." (Compl. ¶ 152.) Plaintiffs further allege that this "unnecessary usurpation of consular officer authority and discretion" causes irreparable injury to them, including waiting an unreasonable amount of time for waivers. (Compl. ¶¶ 153, 156.)
On September 15, 2019, Plaintiffs filed the instant complaint, asserting the following claims: (1) an Administrative Procedure Act ("APA") claim based on Defendants' failure to adjudicate waivers within a reasonable time; (2) an APA claim based on Defendants' failure to comply with PP 9645 because consular officer authority was usurped by requiring the concurrence of consular managers, visa chiefs, and the Visa Office for final waiver decisions; (3) a mandamus claim based on the unreasonable delay, the usurpation of consular officer authority, and the failure to develop guidance that gives individual consular officers the discretion that PP 9645 requires; and (4) a procedural due process claim. (Compl. at 40-49.) At the time the complaint was filed, Beneficiary Plaintiffs had waited an average of 501 days since their applications were refusedpursuant to PP 9645.1 (Compl. ¶ 12.)
On September 26, 2019, Plaintiffs filed a motion for a preliminary injunction, seeking a mandatory injunction that Defendants adjudicate Beneficiary Plaintiffs' waiver requests within fifteen days. (Dkt. No. 9.) Plaintiffs' motion was based on the APA claims only. (See id. at 18-19.) On December 5, 2019, the Court denied Plaintiffs' motion. The Court found that Plaintiffs had not established that their claim regarding timing was reviewable under the APA, but that Plaintiffs' claim based on the usurpation of consular officer authority was reviewable. (Id. at 8.) The Court, however, concluded that while the usurpation of consular officer authority claim was reviewable, Plaintiffs failed to connect that policy to any unreasonable delay. (Id. at 10.) Moreover, Plaintiffs failed to establish that any delay was unreasonable pursuant to the factors set out in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) ("TRAC factors"). (Id. at 10-13.)
On January 16, 2020, Defendants filed the instant motion to dismiss. On January 27, 2020, Plaintiffs filed their opposition. (Pls.' Opp'n, Dkt. No. 52.) On February 6, 2020, Defendants filed their reply. (Defs.' Reply, Dkt. No. 55.)
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In considering such a motion, a court must "accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citingAshcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation marks omitted).
A claim is plausible on its face when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"Threadbare recitals of the elements of a cause of action" and "conclusory statements" are inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (). Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted).
If the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations omitted).
Defendants argue that Plaintiffs' APA claim based on unreasonable delay is not judicially reviewable. (Defs.' Mot. to Dismiss at 10.) As an initial matter, Defendants contend there is no enforceable right in PP 9645 itself because PP 9645 expressly states that it "is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person." PP 9645 § 9(c).
Multiple courts have rejected this argument, explaining that Plaintiffs seek enforcement not through PP 9645, but through the APA. E.g., Darchini v. Pompeo, Case No. SACV 19-1417JVS (DFMx), 2019 WL 7195621, at *4 (C.D. Cal. Dec. 3, 2019); Emami v. Nielsen, 365 F. Supp. 3d 1009, 1019 (N.D. Cal. 2019). Likewise, this Court previously found that PP 9645 is subject to judicial review. While "the APA does not expressly allow review of the President's actions," the Ninth Circuit has found that "under certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency action and reviewed under the APA." Franklin v. Massachusetts, 505 U.S. 788, 801 (1992); City of Carmel-by-the-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997). Because PP 9645 was issued pursuant to the Immigration and Nationality Act ("INA") § 212(f), 8 U.S.C. § 1182, it is subject to judicial review. (Prelim. Inj. Order at 7; see also Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018); Motaghedi v. Pompeo, 19-cv-1466-LJO-SKO, 2020 WL 207155, at *6 (E.D. Cal. Jan. 7, 2020).
In the alternative, Defendants argue that this APA claim fails because there is no objective standard in PP 9645 regarding the timing of waiver adjudications. (Defs.' Mot. to Dismiss at 11-13.) The Court agrees. As explained in City of Carmel-by-the-Sea, executive orders are reviewable under the APA when they have "specific statutory foundation" and "law to apply," i.e. objective standards. 123 F.3d at 1166. With respect to timing, however, Plaintiffs fail to identify an objective standard within the executive order itself. Thus, this claim is...
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