Ali v. Pompeo

Opinion

The Honorable Thomas S. Zilly

WESTERN DISTRICT OF WASHINGTON

SHOUKAT H. ALI, No. C19-01260 TSZ Plaintiff, BRIEFING SCHEDULE AND ORDER v. MICHAEL RICHARD POMPEO, et al.,

Defendants.

The Parties, through undersigned counsel, hereby STIPULATE and AGREE to the following briefing schedule for Defendants’ pre-answer motion to dismiss:

Filing Deadline Defendants’ Motion to Dismiss October 2, 2020 Plaintiffs’ Response to the Motion to Dismiss October 30, 2020 Defendants’ Reply November 6, 2020 Pursuant to the Parties extension request, the Court ordered that the parties file a Joint Status Report by August 31, 2020. Dkt. No. 19. The parties requested the extension to allow Defendants to review the Amended Complaint, filed on August 19, 2020. Dkt. No. 17. The parties agree that the litigation is exempt from the Federal Rule of Civil Procedure 26 initial disclosure requirement, discovery conference and discovery plan. Fed. R. Civ. Pro. 26(a)(1)(B) & 26(f). Accordingly, the Parties respectfully request that the Court accept the above briefing schedule in lieu of a joint status report. Plaintiff seeks an order under the Administrative Procedure Act (“APA”) and similarly a writ of mandamus to compel the U.S. Consular General in Islamabad, Pakistan to complete another adjudication/finish adjudication of an immigrant visa application of his son and his family. On July 25, 2020, the immigrant visa was refused under Presidential Proclamation of April 22, 2020 (PP 10014), and which was extended by the President’s June 22, 2020 Proclamation (PP10052 - June Proclamation). Defendants’ intend to file a motion to dismiss the Amended Complaint. Defendants assert that the denial of the visa is not judicially reviewable. The doctrine of consular nonreviewability bars review of a consular officer’s decision to issue or refuse an alien’s visa application. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986) (“…[I]t has been consistently held that the consular official's decision to issue or withhold a visa is not subject either to administrative or judicial review.”) (citations omitted); Allen v. Milas, 896 F.3d 1094, 1108 (9th Cir. 2018) (“We join the D.C. Circuit in holding that the APA provides no avenue for review of a consular officer's adjudication of a visa on the merits. Whether considered under § 702(1) or (2), the doctrine of consular nonreviewability is a limitation on the scope of our judicial review and thus precludes our review under § 706.”); Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018) (“In Din, Justice Kennedy reiterated that ‘respect for the political branches’ broad power over the creation and administration of the immigration system’ meant that the Government need provide only a statutory citation to explain a visa denial.”)(quoting Kerry v. Din, 135 S. Ct. 2128, 2141 (2015)(Kennedy, J., concurring)). Plaintiffs assert that the Amended Complaint argues at minimum that the Presidential Proclamation legal authority only goes to barring admission, and that it cannot bar the issuance of the visa. Plaintiffs’ factual position is that this visa rejection specifically states “Presidential Proclamation” and has nothing to do with any decision made by the consular official. Defendants’ motion to dismiss, if granted, would resolve this matter in its entirety. Furthermore, the parties agree that the discovery requirements of Federal Rule of Civil Procedure 26 do not apply to this matter. Accordingly, good cause exists to grant the briefing schedule in lieu of a joint status report. Dated: August 31, 2020

Respectfully submitted,

United States Attorney s/ Bart Klein /s/ Michelle R. Lambert BART KLEIN WSBA #10909 MICHELLE R. LAMBERT Law Offices of Bart Klein NYS#4666657 WSBA # 10909 Assistant United States Attorney 605 First Avenue South, Suite 500 United States Attorney’s Office Seattle, WA 98104 1201 Pacific Avenue, Suite 700 Tel.: (206) 624-3787 Tacoma, WA 98402 Fax: (206) 624-6371 Tel.: (253) 428-3824 Bart.Klein@bartklein.com Email: michelle.lambert@usdoj.gov

Attorney for Plaintiffs Attorney for Defendants ORDER Pursuant to the parties’ stipulation, docket no. 20, the following schedule is SO ORDERED: Filing Deadline Defendants’ Motion to Dismiss October 2, 2020 Plaintiff’s Response to the Motion to Dismiss October 30, 2020 Defendants’ Reply November 6, 2020 DATED this 1st day of September, 2020. A Thomas S. Zilly United States District Judge