Wagafe v. Trump

Decision Date21 June 2017
Docket NumberCASE NO. C17-0094-RAJ
CourtU.S. District Court — Western District of Washington
PartiesABDIQAFAR WAGAFE, MEHDI OSTADHASSAN, HANIN OMAR BENGEZI, MUSHTAQ ABED JIHAD, and SAJEEL MANZOOR, on behalf of themselves and others similarly situated, Plaintiffs, v. DONALD TRUMP, President of the United States; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.



This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 56) and Plaintiffs' amended motion for class certification (Dkt. No. 49). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss and GRANTS Plaintiffs' motion for class certification for the reasons explained herein.


This section summarizes the facts as set forth in Plaintiffs' second amended complaint, as is appropriate on a motion to dismiss.

A. The CARRP Policy

This lawsuit is brought by immigration applicants to challenge an allegedly secret and unlawful government program, the Controlled Application Review and Resolution Program (CARRP). (Dkt. No. 47 at ¶¶ 1, 9.) The premise of Plaintiffs' suit is that because the Constitution expressly assigns the authority to establish uniform rules of naturalization to Congress—which Congress has done in the Immigration and Nationality Act (INA)—the United States Citizenship and Immigration Service (USCIS), as part of the executive branch, has created an extra-statutory, unlawful, and unconstitutional program in CARRP. (Id. at ¶¶ 1, 8, 9.)

Plaintiffs allege that USCIS created CARRP in 2008 "as an agency-wide policy to identify, process, and adjudicate certain immigration applications that allegedly raise 'national security concerns.'" (Id. at ¶ 55.) They allege that CARRP implements "an internal vetting policy that has not been authorized by Congress, nor codified, subjected to public notice and comment, or voluntarily made public in any way." (Id. at ¶ 10.) In fact, CARRP was unknown to the public until it was discovered in litigation challenging a denial of naturalization in Hamdi v. USCIS, 2012 WL 632397 (C.D. Cal. Feb. 25, 2012). The only information about CARRP that USCIS made public was in response to Freedom of Information Act (FOIA) requests and the litigation necessary to compel those responses. See ACLU of S. Cal. v. USCIS, No. 13-cv-0861 (D.D.C., filed June 7, 2013).

The policy imposes criteria to determine when an individual should be labeled a "national security concern" that Plaintiffs claim "are vague and overbroad, and often turn on discriminatory factors such as religion and national origin." (Dkt. No. 47 at ¶¶ 62-76.) The criteria also include many lawful activities such as donating to Muslim charities ortravelling to Muslim-majority countries. (Id. at ¶¶ 35-51, 62-76.) Plaintiffs maintain these criteria are "untethered from the specific statutory criteria Congress has authorized to determine when a person is eligible for immigration benefits." (Id.)

Even if an applicant meets all the statutory requirements for citizenship or adjustment of status under the INA, USCIS officers are instructed that an application in CARRP cannot be approved. (Id. at ¶ 77.) If an applicant meets one of CARRP's national security concern criteria, officers are guided to deny the application or delay it as long as possible. (Id. at ¶¶ 77, 78-97.) The applicant is neither informed that her application has been submitted to CARRP, nor able to challenge her classification as a national security concern. (Id. at ¶¶ 61, 96.) Ultimately, Plaintiffs allege that CARRP creates a substantive regime for immigration application processing and imposes "eligibility criteria that indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens who are statutorily eligible and entitled by law." (Id. at ¶ 95.)

B. The President's Executive Orders

Although recent court decisions across the country1 may make Defendant President Trump's (hereinafter "the president") recent Executive Orders a non-issue, the Court will briefly address their impact on this case.

Plaintiffs initiated this lawsuit on January 23, 2017, challenging only the CARRP program. (Dkt. No. 1.) On January 27, 2017, the president issued Executive Order (E.O.) 13769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." 82 Fed. Reg. 8977. Section 3(c) of the E.O. suspended entry into the United States of citizens or nationals of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya. Id.at 8978. USCIS initially determined that E.O. 13769 required it to suspend taking action on all pending applications—except those for naturalization—of nationals from those seven countries. (See Dkt. No. 47 at ¶ 15; Dkt. No. 56 at 20; Dkt. No. 17 at ¶ 3.) Section 4 of E.O. 13769 called for the Secretaries of State and Homeland Security and the Directors of National Intelligence and the FBI to "implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission." 82 Fed. Reg. at 8978.

In response to E.O. 13769, Plaintiffs amended their complaint to challenge sections 3(c) and 4 of the order. (Dkt. No. 17.) Plaintiffs alleged that USCIS relied on section 3 to suspend processing immigrant visas and other immigration benefits. (Id. at ¶ 54.) Plaintiffs also alleged that Section 4 of the E.O. "directs federal agencies to create and implement a policy of extreme vetting of all immigration benefits applications" and that "[a]ny such 'extreme vetting' policy" would expand CARRP. Id. at 8978-79; Dkt. No. 17 at ¶ 4. The day after Plaintiffs filed their amended complaint, USCIS Acting Director Lori Scialabba sent a memo to all USCIS employees stating that section 3(c) did not affect the immigration applications of individuals based on the country of their nationality. (Dkt. No. 22 at 2-3.) In their notice of related cases, Plaintiffs stated that if USCIS adhered to the position expressed by Acting Director Scialabba, "it would appear that the Section 3(c) claims in this action may become moot." (Id. at 3.)

After the Ninth Circuit upheld a temporary restraining order enjoining portions of E.O. 13769 in Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), the president promised to "go[] further" with a new executive action, and assured that "[e]xtreme vetting will be put in place," and that "it already is in place in many places." (Dkt. No. 47 at ¶ 115.) The president then issued E.O. 13780, which rescinded E.O. 13769 in its entirety. 82 Fed. Reg. 13209, 13218 (March 6, 2017). Stephen Miller, the president'sSenior Advisor stated that E.O. 13780 would have "the same basic policy outcome for the country." (Dkt. No. 47 at ¶ 117 (citation omitted)). Sean Spicer, the president's Press Secretary, stated that the goal of E.O. 13780 was "obviously to maintain the way we did it the first time." (Id. at ¶ 118 (citation omitted)).

Portions of the second E.O. were soon after enjoined in Hawai'i v. Trump, 2017 WL 10111673 (D. Haw. Mar. 15, 2017). There, the court concluded that there was "significant and unrebutted evidence of religious animus driving the promulgation of [E.O. 13780] and its related predecessor." Id. at *11. Based on this, "a reasonable, objective observer . . . would conclude that [E.O. 13780] was issued with a purpose to disfavor a particular religion." Id. at *13. The Ninth Circuit largely upheld the district court's order, finding that the plaintiffs were likely to succeed on their claims that the second E.O. "contravened the [Immigration and Nationality Act (INA)] by exceeding the president's authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees." Hawai'i v. Trump, 2017 WL 2529640, at *23 (9th Cir. June 12, 2017).

Following the issuance of E.O. 13780, Plaintiffs filed a second amended complaint which added three named plaintiffs and a challenge to E.O. 13780, alleging that it "sanctions a major expansion of the existing CARRP program." (Dkt. No. 47 at ¶¶ 18, 26-28.)

C. Named Plaintiffs

All named Plaintiffs are foreign nationals from Muslim-majority countries, and have applied for naturalization or adjustment of status. (Id. at ¶¶ 24-28.)

Plaintiff Wagafe is a Somali national and former lawful permanent resident. (Id. at 24.) He applied for naturalization in November 2013 and, although he met the statutory criteria for naturalization, his application was submitted to CARRP. (Id. at ¶¶ 24, 142-161.) There his application remained, until five days after Plaintiffs moved for classcertification, at which point he was contacted by USCIS and an interview was scheduled. (Id. at ¶ 24) Within two weeks, he became a U.S. citizen. (Id.)

Plaintiff Ostadhassan is an Iranian national, and a Professor at the University of North Dakota, who meets all the statutory requirements to adjust his status to that of a lawful permanent resident. (Id. at ¶¶ 25, 162-175.) His application was submitted to CARRP. (Id. at ¶¶ 25, 170.) Prior to this lawsuit, Mr. Ostadhassan waited over three and a half years for a decision on his application. (Id. at 175, Dkt. No. 58 at 12.) On April 5, 2017, one day after Plaintiffs filed their second amended complaint, USCIS notified Mr. Ostadhassan of its intent to deny his application. (Dkt. No. 58 at 3; Dkt. No. 53 at 1.)

Plaintiff Bengezi is a Libyan national married to a United States citizen. (Dkt. No. 47 at ¶ 26.) In February 2015, she applied for adjustment to lawful permanent resident status. (Id.) Her application was submitted to CARRP. (Id. at ¶¶ 26, 196.) Soon after being added as a named plaintiff, USCIS notified her that her interview had been scheduled. (...

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