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Najafi v. Pompeo

United States District Court, N.D. California

December 5, 2019

SONA NAJAFI, et al., Plaintiffs,
v.
MICHAEL R. POMPEO, et al., Defendants.

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION; TERMINATING DEFENDANTS' MOTION TO DISMISS RE: DKT. NOS. 9, 32

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE

         On September 15, 2019, Plaintiffs filed the instant suit against Defendants, challenging Defendants' alleged “withholding of adjudications of case-by-case waivers of Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Deterring Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” (Compl. ¶ 1, Dkt. No. 1.)

         Pending before the Court is Plaintiffs' motion for a preliminary injunction, in which Plaintiffs seek a court order requiring Defendants to complete the adjudication of the waivers within fifteen days. (Pls.' Mot. for Prelim. Inj., Dkt. No. 9.) Having considered the parties' filings, the relevant legal authorities, and the arguments made at the December 5, 2019 motion hearing, the Court DENIES Plaintiffs' motion for a preliminary injunction.[1]

         I. BACKGROUND

         Plaintiffs are U.S. citizens and lawful permanent residents (“Petitioner Plaintiffs”) and their Iranian national relatives or fiancées who are visa applicants (“Beneficiary Plaintiffs”). (Compl. ¶ 2.) Beneficiary Plaintiffs have fulfilled the requirements to obtain family-based or fiancée-based visas; their applications, however, have been refused pursuant to Presidential Proclamation 9645 (“PP 9645”). (Compl. ¶ 3.)

         PP 9645 prohibits the entry of immigrants and non-immigrants from Iran and other countries. PP 9645 § 2(b). PP 9645 is based on the Secretary of Homeland Security's finding that these countries “continue to have ‘inadequate' identity-management protocols, information-sharing practices, and risk factors . . . such that entry restrictions and limitations are recommended . . . .” Id. § 1(g). PP 9645, however, provides: “a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner's designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited . . . .” Id. § 3(c). A waiver may be granted if the “foreign national demonstrates to the consular officer's or CBP official's satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (c) entry would be in the national interest.” Id. § 3(c)(i).

         The Secretary of State and Secretary of Homeland Security are responsible for “coordinat[ing] to adopt guidance addressing the circumstances in which waivers may be appropriate . . . .” PP 9645 § 3(c). Such guidance includes standards, policies, and procedures for “determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States, ” “addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to” PP 9645, and “assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy” the national security requirement. Id. §§ 3(c)(ii)(A), (C), (D).

         In adjudicating waivers, the consular office first determines whether the applicant is eligible for a visa, such as a I-130 (Petitions for Alien Relative) or I-129f (Petition for Alien Fiancé(e)) visa. (See Pls.' Mot. for Prelim. Inj., Exh. 80 at 1-2.) The processing of visa applicants include screening of fingerprints and biometric information through the Consular Lookout and Support System (“CLASS”) database, and screening through IDENT, the FBI Next Generation Identification database, and the Department of State's Facial Recognition database. (Id. at 2.) Once an applicant is determined to be eligible for a visa, the consular officer then automatically considers the applicant for a waiver based on PP 9645's three-part test. (See Pls.' Mot. for Prelim. Inj., Exh. 82 at 1.)

         Plaintiffs are individuals who a consular officer has proposed a waiver for, or whose eligibility for a waiver is being reviewed. (E.g., Pls.' Mot. for Prelim. Inj., Exhs. 55, 57, 60, 64, 68, 72 (stating that waivers had been proposed or requested for the individuals); 56, 58, 59, 62 (stating that a consular officer was reviewing eligibility for a waiver).) Plaintiffs allege, however, that a group within the Department of State, known as the “PP 9645 Brain Trust, ” has “privately promulgated guidance on the waiver adjudication scheme that is inconsistent with” PP 9645. (Compl. ¶ 137.) Specifically, Plaintiffs assert that consular officers are required to seek the concurrence of the Visa Office and the consular manager. (Compl. ¶ 137; Pls.' Mot. for Prelim. Inj. at 9.) For example, the State Department's Q&As state: “[PP 9645] permits consular officers, with the concurrence of the visa chief . . . or consular section chief, and following any required administrative processing, to grant waivers on a case-by-case basis when the applicant demonstrates to the officer's satisfaction” that the three requirements of PP 9645 apply. (Pls.' Mot. for Prelim. Inj., Exh. 75 at 7.) Plaintiffs contend that this requirement is at odds with PP 9645, stripping away the discretion to grant waivers that was given only to consular offices and the CBP's Commissioner and his designees. (Compl. ¶ 137.)

         Further, Plaintiffs assert that the PP 9645 Brain Trust is intentionally delaying waiver adjudications. Specifically, Plaintiffs point to a December 14, 2017 e-mail by Defendant Joel D. Nantais, a Passport and Visa Examiner with the State Department, which states: “Please be clear that the goal of this effort is not to create timely processing of waivers for any applicant who is ineligible under the proclamation. The goal is to as thoroughly and effectively screen and vet every affected applicant prior to waking [sic] a waiver determination.” (Pls.' Mot. for Prelim. Inj., Exh. 95 at 6.)

         As of March 31, 2019, more than 12, 000 applicants have made a preliminary showing of personal hardship and national interest, and were awaiting a determination on whether their entry would not pose a threat to national security and public safety. (Pls.' Mot. for Prelim. Inj., Exh. 89 at 3.) The State Department explained that until an automated enhanced screening and vetting process could be put into place, visa applicants “should undergo a post-interview agency security review to resolve whether their entry would not poste a threat to the national security or public safety.” (Id.) Otherwise, “much of the enhanced screening and vetting process [wa]s manual.” (Id.) In early July 2019, there were approximately 17, 000 cases. (Pls.' Mot. for Prelim. Inj., Exh. 90 at 3.) The State Department, however, implemented a new enhanced automated screening and vetting process, which would “provide[] consular officers much more quickly with the information required to make most PP 9645 waiver determinations.” (Id.) “[I]nitial evidence indicates that consular officers are now able to make most waiver decisions within a few days of the visa interview.” (Id.) Further, through September 14, 2019, the State Department issued more than 7, 500 visas pursuant to a waiver of PP 9645, and “anticipate[d] that a majority of pre-July 2019 waiver cases pending with the Department, most of which require some degree of manual review, should be completed within the next six months.” (The Department of State Meeting with the American Immigration Lawyers Association (AILA) - Committee's questions and the responses provided by the Department of State, U.S. Department of State, https://travel.state.gov/content/travel/en/News/visas-news/20191003dept-of-state-meeting-with-aila.html (last visited Nov. 25, 2019). The new enhanced automated screening is being applied to ten of the Beneficiary Plaintiffs. (See Defs.' Opp'n, Exh. B, Dkt. No. 25.)

         On September 15, 2019, Plaintiffs filed the instant complaint, asserting the following claims: (1) an Administrative Procedure Act (“APA”) claim based on Defendants' failure to adjudicate visa waivers within a reasonable time; (2) an APA claim based on Defendants' failure to comply with PP 9645 by requiring the concurrence of consular managers for final waiver decisions; (3) a mandamus claim based on the unreasonable delay, the requirement of consular manager concurrence, and the development of inconsistent guidance for waivers; and (4) a procedural due process claim based on unreasonable delay and the requirement of consular manager concurrence. (Compl. at 40-49.) As of the filing of the complaint, Beneficiary Plaintiffs had waited an average of 501 days since their applications were refused pursuant to PP 9645. (Compl. ¶ 12.)

         On September 26, 2019, Plaintiffs filed this motion for injunctive relief, seeking a mandatory injunction that Defendants adjudicate Beneficiary Plaintiffs' waiver requests within fifteen days. Plaintiffs assert a likelihood of success on the APA claims only, not the mandamus or due process claims. (See Pls.' Mot. for Prelim. Inj. at 18-19.) On November 7, 2019, Defendants filed their opposition. (Defs.' Opp'n, Dkt. No. 25.) On November 14, 2019, Plaintiffs filed their reply. (Pls.' Reply, Dkt. No. 30.)[2]

         II.LEGAL STANDARD

         A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v. Green, 553 U.S. 674, 689-90 (2008) (citations omitted). Thus, “[a] plaintiff seeking a preliminary injunction must establish (1) likely success on the merits; (2) likely irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the plaintiff's favor; and (4) that an injunction is in the public interest.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth Circuit applies a “sliding scale” approach, in which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. (internal quotation omitted). The moving party must, however, “demonstrate a fair chance of success on the merits, or questions serious enough to require litigation.” Id. (internal quotation omitted).

         “A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (internal quotation and modification omitted). In contrast, “[a] mandatory injunction orders a responsible party to take action.” Id. at 879 (internal quotation omitted). Thus, “[a] mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.” Id. (internal quotations omitted).

         III. DISCUSSION

         A. ...


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