Yeganeh v. Mayorkas, 21-cv-02426-EMC

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: EDWARD M. CHEN, United States District Judge
• Docket Number: 21-cv-02426-EMC
• Parties: OMID YEGANEH, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.
• Decision Date: 03 November 2021

OMID YEGANEH, et al., Plaintiffs,
v.
ALEJANDRO MAYORKAS, et al., Defendants.

No. 21-cv-02426-EMC

United States District Court, N.D. California

November 3, 2021

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Docket No. 29

EDWARD M. CHEN, United States District Judge

I. INTRODUCTION

Plaintiffs are Iranian nationals who applied for visas and naturalization, and several U.S. citizens and lawful permanent residents who filed family-based visa petitions on behalf of their Iranian-national relatives. They allege their applications were denied or will be denied based on terrorism-related inadmissibility grounds (“TRIG”) due to their prior service in the Islamic Revolutionary Guard Corps (“IRGC”) in Iran. Plaintiffs, for themselves and on behalf of a putative class, seek an order compelling Defendants to create a mechanism for a TRIG waiver or exemption for the ineligibility resulting from service in the IRGC.

Now pending is Defendants' motion to dismiss the action for lack of subject-matter jurisdiction and failure to state a claim. For the following reasons, the Court GRANTS Defendants' motion.

II.BACKGROUND

A. Relevant Legal Background

1. Nonimmigrant and Immigrant Visas and Consular Processing

A noncitizen may generally not be admitted to the United States without having been issued an immigrant or nonimmigrant visa. 8 U.S.C. §§ 1181(a), 1182(a)(7), § 1184(a);

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see Kerry v. Din, 576 U.S. 86, 89 (2015). Nonimmigrant visas are usually issued for temporary visits, such as for tourists, students, or certain types of temporary workers, whereas immigrant visas are for permanent residence in the United States with a path to citizenship. See 8 U.S.C. § 1101(a)(15); United States v. Idowu, 105 F.3d 728, 731 (D.C. Cir. 1997) (explaining difference between nonimmigrant and immigrant visas).

Foreign nationals seeking visas to enter the United States must follow the process required by the INA and carry the burden of establishing eligibility for a visa. 8 U.S.C. § 1361. For family-based immigrant visas, a U.S. citizen or lawful permanent resident must file a petition with U.S. Citizenship and Immigration Services (“USCIS”) on behalf of the noncitizen either as an immediate relative or other family-preference category. See 8 U.S.C. § 1154(a)(1); 8 C.F.R. § 204.2. If USCIS approves the petition, the noncitizen beneficiary may apply for an immigrant visa. See 8 U.S.C. §§ 1201(a), 1202(a). For beneficiaries applying for a visa from abroad, USCIS sends the petition to the State Department's National Visa Center to prepare the case for a visa application at the designated U.S. embassy or consulate. 8 U.S.C. § 1202(a); 22 C.F.R. § 42.61 et seq. The noncitizen must then appear for an in-person interview with a State Department consular officer. See 8 U.S.C. § 1202(e); 22 C.F.R. § 42.62(b). Nonimmigrant visas follow a similar process prescribed by regulation. See 8 U.S.C. § 1202(c); 22 C.F.R. § 41.101 et seq.

“When a visa application . . . [is properly] executed before a consular officer . . . the consular officer must either issue or refuse the visa under [§ 1182(a) or § 1201(g)] or other applicable law.” 22 C.F.R. § 42.81(a); see also 22 C.F.R. § 41.121(a). This decision rests with the consular officer. 2 See 8 U.S.C. § 1201(a)(1). But generally, no visa “shall be issued to an alien” if “it appears to the consular officer . . . that such alien is ineligible to receive a visa . . . under section 1182 of this title, or any other provision of law, ” or “the consular officer knows or has reason to believe” that the noncitizen is ineligible. 8 U.S.C. § 1201(g); 22 C.F.R. § 40.6.

2. INA Terrorism Related Inadmissibility Grounds

The INA defines “terrorist organization” as an organization:

(I) designated under section 1189 of this title

(II) otherwise designated, upon publication in the Federal Register

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by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or

(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv)

8 U.S.C. § 1182(a)(3)(B)(vi).

The government refers to organizations defined by subclause I as “Tier I” organizations. Likewise, the government refers to organizations described in subclauses II and III to as “Tier II” and “Tier III” organizations, respectively. Docket No. 29 (“Gov't MTD”) at 3 n.3. Unlike Tier I and Tier II organizations, which are categorically designated, adjudicators determine whether an organization falls within the definition of an undesignated or Tier III terrorist organization on a case-by-case basis. See 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Even if a group is not designated as a Tier I or Tier II organization, the adjudicator may determine that it meets the definition of a Tier III terrorist organization if it or its subgroup: commits or incites terrorist activity; prepares or plans a terrorist activity; gathers information on potential targets for terrorist activity; solicits funds for a terrorist activity or organization; or provides material support to a terrorist, a terrorist organization, or for the commission of a terrorist activity. See Id. § 1182(a)(3)(B)(iv). Further, a group may meet the definition of a Tier III terrorist group for soliciting an individual to engage in or support terrorist organizations or activity. See Id. § 1182(a)(3)(B)(iv)(V).

The INA's terrorism provisions render applicants tied to such organizations “ineligible” for visas or admission to the United States. The INA requires that:

No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law

8 U.S.C. § 1201(g).

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The terrorism-related inadmissibility grounds at Section 1182(a)(3)(B)(i) cover a broad range of activity that renders inadmissible any noncitizen who: (I) has engaged in a terrorist activity; . . .

(V) is a member of a [Tier I or Tier II organization]

(VI) is a member of a [Tier III organization], unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;

. . .

(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization . . . .

8 U.S.C. § 1182(a)(3)(B)(i). The term “engage in terrorist activity” means, among other things, in an individual capacity or as a member of an organization:

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training

. . .

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) [Tier I or Tier II] or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III) [Tier III], or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

8 U.S.C. § 1182(a)(3)(B)(iv).

In addition to creating terrorism-related inadmissibility grounds, Congress provided the Executive Branch two waiver and exemption authorities in the INA.

The first waiver authority relevant to this case of affords discretion to the Executive Branch to temporarily admit certain nonimmigrant visa applicants, notwithstanding their

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inadmissibility under TRIG:

[A]n alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under [§ 1182(a)] . . . may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or

(ii) who is inadmissible under [§ 1182(a)] . . . but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General.

8 U.S.C. § 1182(d)(3)(A) (emphasis added). This waiver applies to individuals, not groups, and includes waiver for those deemed to be a member of a Tier I, II, or III terrorist organization.

Second, Congress provided authority to the Secretaries of State and Homeland Security to exempt certain individuals and groups from TRIG:

The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with

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