Ali v. Pompeo

• Court: District Court, W.D. Washington
• Decided: September 2, 2020
• Docket: 2:19-cv-01260
• Status: Unknown

Opinion

1 The Honorable Thomas S. Zilly 2

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 SHOUKAT H. ALI, No. C19-01260 TSZ 10 Plaintiff, BRIEFING SCHEDULE AND ORDER 11 v. 12 MICHAEL RICHARD POMPEO, et al., 13

14 Defendants.

15 16 The Parties, through undersigned counsel, hereby STIPULATE and AGREE to the 17 following briefing schedule for Defendants’ pre-answer motion to dismiss:

18 Filing Deadline 19 Defendants’ Motion to Dismiss October 2, 2020 20 Plaintiffs’ Response to the Motion to Dismiss October 30, 2020 21 Defendants’ Reply November 6, 2020 22 Pursuant to the Parties extension request, the Court ordered that the parties file a Joint 23 Status Report by August 31, 2020. Dkt. No. 19. The parties requested the extension to allow 24 Defendants to review the Amended Complaint, filed on August 19, 2020. Dkt. No. 17. The 25 parties agree that the litigation is exempt from the Federal Rule of Civil Procedure 26 initial 26 disclosure requirement, discovery conference and discovery plan. Fed. R. Civ. Pro. 26(a)(1)(B) 27 1 & 26(f). Accordingly, the Parties respectfully request that the Court accept the above briefing 2 schedule in lieu of a joint status report. 3 Plaintiff seeks an order under the Administrative Procedure Act (“APA”) and similarly a 4 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 5 family. On July 25, 2020, the immigrant visa was refused under Presidential Proclamation of 6 April 22, 2020 (PP 10014), and which was extended by the President’s June 22, 2020 7 Proclamation (PP10052 - June Proclamation). 8 Defendants’ intend to file a motion to dismiss the Amended Complaint. Defendants assert 9 that the denial of the visa is not judicially reviewable. The doctrine of consular nonreviewability 10 bars review of a consular officer’s decision to issue or refuse an alien’s visa application. Li Hing 11 of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986) (“…[I]t has been consistently 12 held that the consular official's decision to issue or withhold a visa is not subject either to 13 administrative or judicial review.”) (citations omitted); Allen v. Milas, 896 F.3d 1094, 1108 (9th 14 Cir. 2018) (“We join the D.C. Circuit in holding that the APA provides no avenue for review of a 15 consular officer's adjudication of a visa on the merits. Whether considered under § 702(1) or (2), 16 the doctrine of consular nonreviewability is a limitation on the scope of our judicial review and 17 thus precludes our review under § 706.”); Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018) (“In 18 Din, Justice Kennedy reiterated that ‘respect for the political branches’ broad power over the 19 creation and administration of the immigration system’ meant that the Government need provide 20 only a statutory citation to explain a visa denial.”)(quoting Kerry v. Din, 135 S. Ct. 2128, 2141 21 (2015)(Kennedy, J., concurring)). 22 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 23 of the visa. Plaintiffs’ factual position is that this visa rejection specifically states “Presidential 24 Proclamation” and has nothing to do with any decision made by the consular official. 25 Defendants’ motion to dismiss, if granted, would resolve this matter in its entirety. 26 Furthermore, the parties agree that the discovery requirements of Federal Rule of Civil Procedure 27 1 26 do not apply to this matter. Accordingly, good cause exists to grant the briefing schedule in 2 lieu of a joint status report. 3 Dated: August 31, 2020

4 Respectfully submitted,

6 BRIAN T. MORAN United States Attorney 7 s/ Bart Klein /s/ Michelle R. Lambert 8 BART KLEIN WSBA #10909 MICHELLE R. LAMBERT Law Offices of Bart Klein NYS#4666657 9 WSBA # 10909 Assistant United States Attorney 10 605 First Avenue South, Suite 500 United States Attorney’s Office Seattle, WA 98104 1201 Pacific Avenue, Suite 700 11 Tel.: (206) 624-3787 Tacoma, WA 98402 Fax: (206) 624-6371 Tel.: (253) 428-3824 12 Bart.Klein@bartklein.com Email: michelle.lambert@usdoj.gov

13 Attorney for Plaintiffs Attorney for Defendants 14 ORDER 15 Pursuant to the parties’ stipulation, docket no. 20, the following schedule is SO 16 ORDERED: 17 Filing Deadline 18 Defendants’ Motion to Dismiss October 2, 2020 19 Plaintiff’s Response to the Motion to Dismiss October 30, 2020 20 Defendants’ Reply November 6, 2020 21 22 DATED this 1st day of September, 2020. A 23 24 Thomas S. Zilly 25 United States District Judge 26