Razi v. Pompeo

• Court: U.S. District Court — Southern District of California
• Writing for the Court: Hon. Thomas J. Whelan United States District Judge
• Decision Date: 23 October 2020
• Docket Number: Case No.: 20-CV-0982-W-MSB
• Citation: Razi v. Pompeo, Case No.: 20-CV-0982-W-MSB (S.D. Cal. Oct 23, 2020)
• Parties: FARZANEH RAZI, individually and as Gaurdian ad Litem for S.J., a minor; MOHAMMADALI JENABZADEH; ELIAS YAZDANSHENAS; SAHARNAZ MONTAZERI; NEGAR SADEGHOLVAD, individually and as Gaurdian ad Litem for B.S.; KOUROSH SEPAHPOUR; ALI VATAN and MOHAMMAD SALEH VATAN, Plaintiffs, v. MICHAEL R. POMPEO, in his official capacity as Secretary of State; U.S. DEPARTMENT OF STATE; and DOES #1-#10 who are non-consular officer officials employed by the Department of State, or its contractors such as Quality Support, Inc., Defendants.

FARZANEH RAZI, individually and as Gaurdian ad Litem for S.J., a minor;MOHAMMADALI JENABZADEH; ELIAS YAZDANSHENAS;SAHARNAZ MONTAZERI; NEGAR SADEGHOLVAD,individually and as Gaurdian ad Litem for B.S.; KOUROSH SEPAHPOUR;ALI VATAN and MOHAMMAD SALEH VATAN, Plaintiffs, v. MICHAEL R. POMPEO, in his official capacity as Secretary of State;U.S. DEPARTMENT OF STATE; and DOES #1-#10 who are non-consular officer officials employedby the Department of State, or its contractors such as Quality Support, Inc., Defendants.

Case No.: 20-CV-0982-W-MSB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

October 23, 2020

ORDER:

(1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [DOC. 8]

Pending before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint ("FAC") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Defs.' Mot. to Dismiss [Doc. 8].) The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss [Doc. 8].

I. BACKGROUND

Plaintiffs in this case are U.S. citizens and lawful permanent residents ("Petitioner Plaintiffs") and their Iranian relatives ("Beneficiary Plaintiffs") who are visa applicants to the United States. (FAC ¶ 5 [Doc. 3].) Beneficiary Plaintiffs have completed the necessary steps of the visa application process to enter the United States but have been denied pursuant to Presidential Proclamation 9645 ("PP 9645"). (Id. ¶ 8.) PP 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats," was signed into effect by President Donald Trump on September 24, 2017, and prohibits the entry of immigrants from certain countries, including Iran, who would otherwise normally be granted a visa. Proclamation No. 9645, 82 Fed. Reg. at 45161-72 (Sept. 27, 2017) [hereinafter PP 9645]. This prohibition is based on the Secretary of Homeland Security's determination that the countries listed in PP 9645 "remain deficient . . . with respect to their identity-management and information sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory." Id.

PP 9645, section 3(c), provides for a waiver process that evaluates visa applicants denied because of PP 9645 on a case by case basis for admission to the United States. Id. Waivers can be administered to applicants who meet the following critera: (1) undue hardship if entry is denied, (2) entry would not threaten national security or public safety, and (3) entry is in the national interest. Id. PP 9645 instructs that "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" based on these three critera. Id.

Plaintiffs acknowledge that PP 9645 "requires the Secretary of State and the Secretary of Homeland Security to adopt guidance establishing when waivers may be appropriate," (FAC ¶ 5 [Doc. 3],) but allege that the current waiver process includes individuals beyond those authorized by PP 9645, (id. ¶ 16.) Plaintiffs allege that an entity known as the "PP 9645 Brain Trust" has improperly "extended the authority anddiscretion—that PP 9645 granted only with individual consular officers—to consular managers, visa chiefs, consular section chiefs, and/or consular management, the Visa Office and/or Quality Support, Inc. contractors." (Id.) In support, Plaintiffs attached several exhibits and point to information provided in the "Operational Q&A's on P.P. 9645" published by Defendants. (Id. ¶ 94.) Further, Plaintiffs allege that the current waiver process, which requires individual consular officers to get concurring waiver approvals for the national security waiver standard, "demonstrate[s] Defendants' pattern and policy of unreasonable delay in dealing with waiver adjudication, as well as actions that are arbitrary and capricious." (Id. ¶¶ 17-18.)

On May 27, 2020, Plaintiffs filed a Complaint, amended on May 30, 2020, bringing four causes of action. Plaintiffs claim violations of the Administrative Procedure Act ("APA") under 5 U.S.C. 555(b) for unreasonable delay, (see, e.g., id. ¶ 183,) and 5 U.S.C. §§ 706(2)(A) and (D) for an unlawful, arbitrary, and capricious abuse of discretion, (see, e.g., id. ¶ 199.) Plaintiffs also seek mandamus for reasons identical to the APA claims. (See, e.g., id. ¶¶ 210-11, 216.) Finally, Plaintiffs claim that Defendants' conduct has violated their Constitutionally protected procedural due process rights. (See, e.g., id. ¶¶ 222-24.)

On July 28, 2020, Defendants filed a Motion to Dismiss all four of Plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On August 24, 2020, Plaintiffs filed a timely response in opposition and Defendants replied on August 31, 2020. The matter is now before this Court for determination.

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Jurisdiction

Rule 12(b)(1) provides a procedural mechanism for a defendant to challenge subject-matter jurisdiction. "A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. Where jurisdiction is intertwined with the merits, we must assume the truth of the allegations ina complaint unless controverted by undisputed facts in the record." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks, brackets, ellipsis and citations omitted).

A facial attack challenges the complaint on its face. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But when the moving party raises a factual challenge to jurisdiction, the court may look beyond the complaint and consider extrinsic evidence, and "need not presume the truthfulness of the plaintiff's allegations." See id. Once the defendant has presented a factual challenge under Rule 12(b)(1), the burden of proof shifts to the plaintiff to "furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id.

B. Motion to Dismiss for Failure to State a Claim

The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the motion, a court must "accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party." Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).

Complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted this rule to mean that "[f]actual allegations must be enough to rise above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). Well-pleaded allegations in the complaint are assumed true,but a court is not required to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

Leave to amend should be freely granted when justice so requires. See Fed. R. Civ. P. 15(a). However, denial of leave to amend is appropriate when such leave would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996); Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997).

III. DISCUSSION

A. Justiciability

Defendants argue the Plaintiffs' claims are not justiciable because (1) PP 9645 does not provide for a private cause of action, (2) 5 U.S.C. § 701(a) precludes review, and (3) judicial review is precluded by the doctrine of consular nonreviewability and 5 U.S.C. § 702. Based on the following, the Court respectfully disagrees and finds Plaintiffs' claims are reviewable.

The motion to dismiss under Rule 12(b)(1) is DENIED.

1. Private Action of PP 9645

Defendants contend that Plaintiffs' claims are precluded from judicial review because there is no available private cause of action to enforce PP 9645. (Defs.' Mot. to Dismiss 11:1-3 [Doc. 8].) Defendants argue that Plaintiffs' case attempts to enforce PP 9645, noting that "Plaintiffs repeatedly allege that Defendants' waiver adjudication process violates express terms of the Proclamation." (Defs.' Mot. to Dismiss 10:20-21 [Doc. 8]; See also FAC ¶¶ 14-18, 81-82, 89, 94, 105, 117, 138 [Doc. 3].) Defendants advise that "there is no private right of action to enforce obligations imposed on executive branch officials by executive orders." Chai v. Carroll, 48 F.3d 1331, 1338. Further, PP 9645 expressly states that:

This proclamation 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.

Plaintiffs' FAC certainly does take the opportunity to make repeated declarations that Defendants' delegation of review for the national security and public safety prong of the waiver process is...