Najafi v. Pompeo

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SONA NAJAFI, et al., Case No. 19-cv-05782-KAW

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS

10 MICHAEL R. POMPEO, et al., Re: Dkt. No. 48 11 Defendants.

12 13 On September 15, 2019, Plaintiffs filed the instant suit against Defendants, challenging 14 Defendants’ alleged “withholding of adjudications of case-by-case waivers of Presidential 15 Proclamation 9645, Enhancing Vetting Capabilities and Processes for Deterring Attempted Entry 16 into the United States by Terrorists or Other Public-Safety Threats.” (Compl. ¶ 1, Dkt. No. 1.) 17 Pending before the Court is Defendants’ motion to dismiss. (Defs.’ Mot. to Dismiss, Dkt. 18 No. 48.) Having considered the parties’ filings, the relevant legal authorities, and the arguments 19 made at the March 5, 2020 motion hearing, the Court GRANTS Defendants’ motion to dismiss. 20 I. BACKGROUND 21 Plaintiffs are U.S. citizens and lawful permanent residents (“Petitioner Plaintiffs”) and 22 their Iranian national relatives or fiancées who are visa applicants (“Beneficiary Plaintiffs”). 23 (Compl. ¶ 2.) Beneficiary Plaintiffs have fulfilled the requirements to obtain family-based or 24 fiancée-based visas, but their applications have been denied pursuant to Presidential Proclamation 25 9645 (“PP 9645”). (Compl. ¶ 3.) 26 PP 9645 prohibits the entry of immigrants and non-immigrants from Iran and other 27 countries. PP 9645 § 2(b). PP 9645, however, provides: “a consular officer, or the Commissioner, 1 appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of 2 foreign nationals for whom entry is otherwise suspended or limited . . . .” Id. § 3(c). A waiver 3 may be granted if the “foreign national demonstrates to the consular officer’s or CBP official’s 4 satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry 5 would not pose a threat to the national security or public safety of the United States; and (C) entry 6 would be in the national interest.” Id. § 3(c)(i). 7 Plaintiffs are individuals who a consular officer has proposed a waiver for, or whose 8 eligibility for a waiver is being reviewed. Plaintiffs allege, however, that a group within the 9 Department of State, known as the “PP 9645 Brain Trust,” has “privately promulgated guidance 10 on the waiver adjudication scheme that is inconsistent with” PP 9645. (Compl. ¶ 137.) 11 Specifically, Plaintiffs assert that consular officers are required to seek the concurrence of the 12 consular manager and the Visa Office. (Compl. ¶¶ 137, 147.) Plaintiffs contend that this 13 requirement is at odds with PP 9645 because it “unlawfully extend[s] the authority and discretion 14 that PP 9645 granted only with individual officers to: consular managers, visa chiefs, consular 15 section chiefs, and/or consular management and the Visa Office.” (Compl. ¶ 152.) Plaintiffs 16 further allege that this “unnecessary usurpation of consular officer authority and discretion” causes 17 irreparable injury to them, including waiting an unreasonable amount of time for waivers. 18 (Compl. ¶¶ 153, 156.) 19 On September 15, 2019, Plaintiffs filed the instant complaint, asserting the following 20 claims: (1) an Administrative Procedure Act (“APA”) claim based on Defendants’ failure to 21 adjudicate waivers within a reasonable time; (2) an APA claim based on Defendants’ failure to 22 comply with PP 9645 because consular officer authority was usurped by requiring the concurrence 23 of consular managers, visa chiefs, and the Visa Office for final waiver decisions; (3) a mandamus 24 claim based on the unreasonable delay, the usurpation of consular officer authority, and the failure 25 to develop guidance that gives individual consular officers the discretion that PP 9645 requires; 26 and (4) a procedural due process claim. (Compl. at 40-49.) At the time the complaint was filed, 27 Beneficiary Plaintiffs had waited an average of 501 days since their applications were refused 1 pursuant to PP 9645.1 (Compl. ¶ 12.) 2 On September 26, 2019, Plaintiffs filed a motion for a preliminary injunction, seeking a 3 mandatory injunction that Defendants adjudicate Beneficiary Plaintiffs’ waiver requests within 4 fifteen days. (Dkt. No. 9.) Plaintiffs’ motion was based on the APA claims only. (See id. at 18- 5 19.) On December 5, 2019, the Court denied Plaintiffs’ motion. (Prelim. Inj. Order at 1, Dkt. No. 6 41.) The Court found that Plaintiffs had not established that their claim regarding timing was 7 reviewable under the APA, but that Plaintiffs’ claim based on the usurpation of consular officer 8 authority was reviewable. (Id. at 8.) The Court, however, concluded that while the usurpation of 9 consular officer authority claim was reviewable, Plaintiffs failed to connect that policy to any 10 unreasonable delay. (Id. at 10.) Moreover, Plaintiffs failed to establish that any delay was 11 unreasonable pursuant to the factors set out in Telecommunications Research and Action Center v. 12 FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC factors”). (Id. at 10-13.) 13 On January 16, 2020, Defendants filed the instant motion to dismiss. On January 27, 2020, 14 Plaintiffs filed their opposition. (Pls.’ Opp’n, Dkt. No. 52.) On February 6, 2020, Defendants 15 filed their reply. (Defs.’ Reply, Dkt. No. 55.) 16 II. LEGAL STANDARD 17 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 18 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 19 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 20 F.3d 729, 732 (9th Cir. 2001). 21 In considering such a motion, a court must “accept as true all of the factual allegations 22 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 23 omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or 24 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 25 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 26

27 1 Since the filing of the complaint, several Beneficiary Plaintiffs have had their waivers granted. 1 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 2 marks omitted). 3 A claim is plausible on its face when a plaintiff “pleads factual content that allows the 4 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate 6 “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 7 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 “Threadbare recitals of the elements of a cause of action” and “conclusory statements” are 9 inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th 10 Cir. 1996) (“[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat 11 a motion to dismiss for failure to state a claim.”). “The plausibility standard is not akin to a 12 probability requirement, but it asks for more than a sheer possibility that a defendant has acted 13 unlawfully . . . . When a complaint pleads facts that are merely consistent with a defendant's 14 liability, it stops short of the line between possibility and plausibility of entitlement to relief.” 15 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted). 16 If the court grants a motion to dismiss, it should grant leave to amend even if no request to 17 amend is made “unless it determines that the pleading could not possibly be cured by the 18 allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations omitted). 19 III. DISCUSSION 20 A. APA Claim Based on Unreasonable Delay 21 Defendants argue that Plaintiffs’ APA claim based on unreasonable delay is not judicially 22 reviewable. (Defs.’ Mot. to Dismiss at 10.) As an initial matter, Defendants contend there is no 23 enforceable right in PP 9645 itself because PP 9645 expressly states that it “is not intended to, and 24 does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by 25 any party against the United States, its departments, agencies, or entities, its officers, employees, 26 or agents, or any other person.” PP 9645 § 9(c). 27 Multiple courts have rejected this argument, explaining that Plaintiffs seek enforcement 1 JVS (DFMx), 2019 WL 7195621, at *4 (C.D. Cal. Dec. 3, 2019); Emami v. Nielsen, 365 F. Supp. 2 3d 1009, 1019 (N.D. Cal. 2019). Likewise, this Court previously found that PP 9645 is subject to 3 judicial review. (Prelim. Inj. Order at 7.) While “the APA does not expressly allow review of the 4 President’s actions,” the Ninth Circuit has found that “under certain circumstances, Executive 5 Orders, with specific statutory foundation, are treated as agency action and reviewed under the 6 APA.” Franklin v. Massachusetts, 505 U.S. 788, 801 (1992); City of Carmel-by-the-Sea v. United 7 States Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997). Because PP 9645 was issued 8 pursuant to the Immigration and Nationality Act (“INA”) § 212(f), 8 U.S.C. § 1182, it is subject to 9 judicial review. (Prelim. Inj. Order at 7; see also Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018); 10 Motaghedi v. Pompeo, 19-cv-1466-LJO-SKO, 2020 WL 207155, at *6 (E.D. Cal. Jan. 7, 2020). 11 In the alternative, Defendants argue that this APA claim fails because there is no objective 12 standard in PP 9645 regarding the timing of waiver adjudications. (Defs.’ Mot. to Dismiss at 11- 13 13.) The Court agrees. As explained in City of Carmel-by-the-Sea, executive orders are 14 reviewable under the APA when they have “specific statutory foundation” and “law to apply,” i.e. 15 objective standards. 123 F.3d at 1166. With respect to timing, however, Plaintiffs fail to identify 16 an objective standard within the executive order itself. Thus, this claim is not reviewable under 17 the APA. See Darchini, 2019 WL 7195621, at *5. 18 Instead, Plaintiffs point to other cases which have found that PP 9645’s lack of a timing 19 requirement does not preclude review of an APA claim based on unreasonable delay. (Pls.’ Opp’n 20 at 7-8.) Those courts reasoned that “[t]he absence of any standard upon which to frame a timing 21 requirement is not unusual in APA unreasonable delay cases,” and that the courts could apply the 22 TRAC factors. Motaghedi v. Pompeo, 19-cv-1466-LJO-SKO, 2020 WL 207155, at *6 (E.D. Cal. 23 Jan. 7, 2020); see also Thomas v. Pompeo, 19-cv-1050 (ESH) 2020 WL 601788, at *6 (D.D.C. 24 Feb. 7, 2020); Moghaddam v. Pompeo, -- F. Supp. 3d --, 2020 WL 364839, at *8 (D.D.C. Jan. 22, 25 2020). These cases, however, did not consider City of Carmel-by-the-Sea, which applies 26 specifically to when an executive order is reviewable under the APA. See City of Carmel-by-the- 27 Sea, 123 F.3d at 1166. Per the Ninth Circuit’s guidance in City of Carmel-by-the-Sea, an 1 ‘law to apply.’” Id.; see also W. Watersheds v. BLM, 629 F. Supp. 2d 951, 962 (D. Ariz. 2009). 2 Thus, while a typical APA claim based on agency actions taken pursuant to a statute may not 3 require an objective standard, that does not appear to be the case for APA claims based on agency 4 actions taken pursuant to an executive order. 5 In the alternative, Plaintiff argues that there is law to apply because other courts have 6 “weighed in on the issue” of whether “180 days is an unreasonable amount of time for Defendants 7 to delay a PP 9645 waiver adjudication.” (Pls.’ Opp’n at 10.) As City of Carmel-by-the-Sea 8 makes clear, however, the executive order itself must set the objective standards. 123 F.3d at 9 1166. 10 Accordingly, the Court finds that because Plaintiffs have failed to identify an objective 11 standard in PP 9645 as to timing, Plaintiffs’ APA claim based on unreasonable delay must be 12 dismissed with prejudice. 13 B. APA Claim Based on Usurpation of Consular Officer Authority 14 Next, Defendants argue that Plaintiffs’ APA claim based on usurpation of consular officer 15 authority must be dismissed because Plaintiffs fail to state a claim. (Defs.’ Mot. to Dismiss at 13.) 16 First, Defendants contend that “Plaintiffs have failed to plead with sufficiency facts 17 connecting this alleged unlawful policy with unreasonable delay.” (Defs.’ Mot. to Dismiss at 14.) 18 As Plaintiffs correctly point out, however, Plaintiffs’ APA claim is premised on whether giving 19 authority to non-consular officers is a violation of PP 9645, regardless of the injury it causes. (See 20 Pls.’ Opp’n at 13.) Thus, Plaintiffs need not plead a connection between the alleged usurpation of 21 consular officer authority and delay in order to establish that Defendants’ implementation of PP 22 9645 is unlawful. While the Court previously denied Plaintiffs’ motion for a preliminary 23 injunction because Plaintiffs failed to establish that connection, that was because Plaintiffs sought 24 injunctive relief tied to such a delay. Here, at the pleading stage, Plaintiffs’ claim does not require 25 unreasonable delay in order to survive. 26 Plaintiffs, however, must plead an injury caused by the usurpation of consular officer 27 authority in order to have standing to bring this claim. As alleged, however, Plaintiffs have not 1 been submitted in support of the prior motion for a preliminary injunction, but such information is 2 not in the complaint. Accordingly, the Court dismisses this claim to allow Plaintiffs to plead 3 injury sufficient to establish standing. 4 Additionally, Defendants contend that Plaintiffs fail to state a claim because requiring 5 participation and concurrence from consular management is not contrary to PP 9645. (Defs.’ Mot. 6 to Dismiss at 18-19.) Defendants note that PP 9645 does not define “consular officer,” but that the 7 INA’s definition would encompass consular management. (Id. at 19.) Specifically, 8 U.S.C. § 8 1101(a)(9) defines “consular officer” as: “any consular, diplomatic, or other officer or employee 9 of the United States designated under regulations prescribed under authority contained in this 10 chapter, for the purpose of issuing immigrant or nonimmigrant visas or . . . for the purpose of 11 adjudicating nationality.” 12 Plaintiffs do not respond to this argument in their opposition. Other courts, however, have 13 dismissed similar usurpation claims by relying on § 1101(a)(9). E.g., Darchini, 2019 WL 14 7195621, at *5; Motaghedi, 2020 WL 207155, at *14. At the hearing, Plaintiffs stated that there 15 were non-government entities who were also required to concur in waiver decisions. Plaintiffs 16 have not alleged such facts in the operative complaint, although the Court observes that at least 17 one other court has found similar allegations to be sufficient to survive a motion to dismiss. See 18 Motaghedi v. Pompeo, 19-cv-1466-LJO-SKO, 2020 WL 489198, at *13 (E.D. Cal. Jan. 30, 2020). 19 Accordingly, the Court dismisses this claim with leave to amend. 20 C. Procedural Due Process 21 The Fifth Amendment provides: “No person shall be . . . deprived of life, liberty, or 22 property, without due process of law.” U.S. Const. amend. V. “To bring a successful procedural 23 due process claim, a plaintiff must point to (1) the deprivation of a constitutionally protected 24 liberty or property interest, and (2) the denial of adequate procedural protections.” Gebhardt v. 25 Nielsen, 879 F.3d 980, 988 (9th Cir. 2018) (internal quotation omitted). 26 The Court finds that Plaintiffs have failed to identify a protected liberty or property 27 interest. As an initial matter, Plaintiffs fail to respond to Defendants’ argument that Beneficiary 1 Dismiss at 20.) At the hearing, Plaintiffs agreed that the law did not support their position. 2 In their opposition, Plaintiffs point generally to the “infringement of fundamental rights to 3 property, to life, to family integrity and security, and to freedom from discrimination with respect 4 to their fundamental rights.” (Pls.’ Opp’n at 23.) As the Motaghedi court found regarding this 5 same argument, “Plaintiffs’ allegations are too conclusory to state a plausible claim.” Motaghedi 6 v. Pompeo, 19-cv-1466-LJO-SKO, 2020 WL 489198, at *14 (E.D. Cal. Jan. 30, 2020). 7 Further, with respect to “family integrity and security,” the Court observes that the Ninth 8 Circuit has found that this right does not create “a fundamental right to reside in the United States 9 simply because other members of his family are citizens or lawful permanent residents.” Moralez- 10 Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010), overruled in part on 11 other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc); see also 12 Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018); S.A. v. Trump, 363 F. Supp. 3d 1048, 13 1091 (N.D. Cal. 2018) (“the Ninth Circuit [has] held that the general right to familial 14 companionship cannot form the basis of a due-process claim for a plaintiff in the United States 15 challenging a government decision not to admit non-citizen family members located outside the 16 United States”). 17 Likewise, to the extent Beneficiary Plaintiffs are relying on the right to show that 18 Beneficiary Plaintiffs are eligible for visas, Plaintiffs cite no authority in support. (See Pls.’ Opp’n 19 at 22; Compl. ¶ 197.) Rather, it appears that Beneficiary Plaintiffs, “as . . . unadmitted and 20 nonresident alien[s], ha[ve] no constitutional right of entry to this country as a nonimmigrant or 21 otherwise.” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); see also Kerry v. Din, 135 S. Ct. 22 2128, 2131 (2015) (“an unadmitted and nonresident alien . . . has no right of entry into the United 23 States, and no cause of action to press in furtherance of his claim for admission”). 24 Finally, Plaintiff invites the Court to consider “the extreme amount of money that 25 Defendants’ actions and inactions are costing Plaintiffs,” but cites no authority in support that this 26 would support a procedural due process claim. (Pls.’ Opp’n at 23.) 27 Accordingly, the Court dismisses this claim with leave to amend as to Petitioner Plaintiffs. 1 conceded at the hearing that the law does not support Beneficiary Plaintiffs bringing a due process 2 || claim. 3 D. Mandamus 4 The writ of mandamus is “intended to provide a remedy for a plaintiff only if he has 5 || exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary 6 duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Because the Court has found that Plaintiffs 7 have not adequately alleged a claim, including identifying any actions that the agency must take, 8 || the mandamus claim must be dismissed as well. See Norton vy. S. Utah Wilderness Alliance, 542 9 |} U.S. 55, 63-64 (2004); Dibdan v. Pompeo, Case No. 19-cv-881 (CRC), 2020 WL 224517, at *7 10 || (D.D.C. Jan. 15, 2020); Darchini, 2019 WL 7195621, at *6. 11 IV. CONCLUSION 12 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss. The 13 || APA claim based on unreasonable delay and Beneficiary Petitioners’ due process claims are 14 || DISMISSED with prejudice. The remaining claims are DISMISSED without prejudice. Plaintiffs 3 15 may file an amended complaint within thirty days of the date of this order. a 16 IT IS SO ORDERED. 17 || Dated: March 5, 2020 18 cal te — 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28