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Othman Almaqrami v. Tillerson

United States District Court, District of Columbia

March 27, 2018

HAMED SUFYAN OTHMAN ALMAQRAMI, et al., Plaintiffs,
v.
REX W. TILLERSON, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         Plaintiffs-citizens of Yemen and Iran-allege that Defendants unlawfully failed to process their diversity immigrant visa applications based on President Trump's March 6, 2017 Executive Order. ECF No. 46 (Am. Compl.). Defendants now move to dismiss Plaintiffs' Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ECF No. 53 (Mot.). For the reasons explained below, the court will GRANT Defendants' motion to dismiss for lack of subject matter jurisdiction.

         I. BACKGROUND

         The facts of this case are set forth in more detail in the court's September 29, 2017 Memorandum Opinion regarding Plaintiffs' motion for a preliminary injunction. ECF No. 49 (Mem. Op.) at 1-7. On March 6, 2017, President Trump issued Executive Order 13, 780 (“Executive Order”), which imposed, in section 2(c), a 90-day suspension on entry into the United States for nationals of six countries-Iran, Libya, Somalia, Sudan, Syria, and Yemen.

         Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13209, 13213 (2017). By the end of March 2017, section 2(c) of the Executive Order was enjoined, and two U.S. Courts of Appeals-the Fourth and Ninth Circuits-largely upheld both injunctions. See Int'l Refugee Assistance Project (IRAP) v. Trump, 857 F.3d 554 (4th Cir. 2017), cert. granted, 137 S.Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. IRAP, 138 S.Ct. 353 (2017); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. IRAP, 137 S.Ct. 2080 (2017), and cert. granted, judgment vacated, 138 S.Ct. 377 (2017), and vacated, 874 F.3d 1112 (9th Cir. 2017). On June 26, 2017, the U.S. Supreme Court granted a stay in part of the injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Trump, 137 S.Ct. at 2087. In light of the Executive Order and the Supreme Court's stay, the State Department issued a cable advising consular officers to refuse diversity visas to applicants who were not exempt from the Executive Order's suspension of entry provision and who did not qualify for a waiver. ECF No. 2-2 (State Department Cable) at 3.

         On August 3, 2017, Plaintiffs filed a Petition for Mandamus and Complaint for Injunctive and Declaratory Relief, as well as a Motion for Preliminary Injunction, in which they argued that the State Department's cable unlawfully applied President Trump's Executive Order to diversity immigrant visa applicants for fiscal year 2017 (“FY 2017”). In the operative complaint, Plaintiffs allege that: (1) the State Department's practice of requiring diversity visa applicants to provide documentation evidencing a bona fide relationship with the United States was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and that (2) in applying the policy, consular officers violated their clear, non-discretionary duty to issue diversity visas to applicants who are statutorily eligible. Am. Compl. at 15-17.

         In their Motion for Preliminary Injunction, Plaintiffs asked the court to issue an order: (1) enjoining the State Department from implementing the policy set forth in its cable; and (2) requiring consular officers to process Plaintiffs' applications pursuant to the Immigration and Nationality Act. ECF No. 2 (Injunction Mot.) at 10. Plaintiffs subsequently sought additional relief, requesting that this court order the State Department to: (1) process the diversity visas of, and/or issue diversity visas to, eligible applicants who had previously been refused pursuant to the Executive Order under the program for FY 2017, even in excess of the statutory cap and/or past the statutory deadline; or (2) issue diversity visas to eligible 2017 applicants who had been refused pursuant to the Executive Order under the program for fiscal year 2018. ECF No. 43 at 3-4. Alternatively, Plaintiffs asked the court to order the State Department to “reserve any unused visa numbers until after the [Supreme Court's decision]” regarding the legality of the Executive Order. ECF No. 45 at 5.

         On September 29, 2017, the court granted in part and denied in part Plaintiffs' motion for a preliminary injunction and emergency mandamus relief. ECF No. 50 (Order, Sept. 29, 2017); Mem. Op. at 17. After reviewing the Fourth and Ninth Circuits' decisions in IRAP and Hawaii, the court found that the Supreme Court's June 26 decision permitting the Executive Order's execution with respect to individuals without a bona fide relationship with the United States applied not only to entry into the U.S., but to visa issuance as well. Mem. Op. at 8-11. Given the Supreme Court's June 26 decision and the Court's continuing jurisdiction to consider the legality of the Executive Order-including with respect to visa issuance-the court found that it was precluded from finding the State Department's policy illegal and from ordering the State Department to process and issue visas. Id. However, the court did invoke its mandamus jurisdiction to grant Plaintiffs' alternative relief, and ordered the Defendants to: (1) report, by October 15, the number of visa numbers returned unused for FY 2017; and (2) hold those visa numbers to process Plaintiffs' visa applications in the event the Supreme Court found the Executive Order to be unlawful. Order, Sept. 29, 2017; Mem. Op. at 15. On October 15, 2017, the State Department complied with part of the court's order, reporting that 27, 241 diversity visa numbers were returned unused and that 49, 976 diversity visas were issued for FY 2017. ECF No. 52 at 1.

         Five days earlier, on October 10, 2017, the Supreme Court found that because section 2(c) of the Executive Order expired by its own terms on September 24, 2017, the appeal in IRAP no longer presented a live case or controversy. Trump v. IRAP, 138 S.Ct. 353, 353 (2017). Accordingly, the Court vacated the Fourth Circuit's judgment enjoining section 2(c) of the Executive Order, and remanded the case to the Circuit “with instructions to dismiss as moot the challenge to Executive Order No. 13, 780.” Id. Fourteen days later, on October 24, 2017, the Supreme Court dismissed the appeal in Hawaii based on the same reasoning and with the same instructions it provided in IRAP. Trump v. Hawaii, 138 S.Ct. 377, 377 (2017).

         II. LEGAL STANDARD

         A. Rule 12(b)(1)

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. The law presumes that “a cause lies outside [a federal court's] limited jurisdiction” unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Georgiades v. Martin-Trigona, 729 F.2d 831, 833, n.4 (D.C. Cir. 1984) (“It is the burden of the party claiming subject matter jurisdiction to demonstrate that it exists.”). In evaluating a motion to dismiss under Rule 12(b)(1), a court must assume the truth of all factual allegations and must review “‘the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, “‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the [c]ourt accept plaintiff's legal conclusions.'” Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)). Additionally, a court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation omitted). Finally, a “‘court may appropriately dispose of a case under 12(b)(1) on mootness grounds.” Mykonos v. United States, 59 F.Supp.3d 100, 103-04 (D.D.C. 2014) (citing Comm. in Solidarity with the People of El Sal. v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991)).

         B. Rule 12(b)(6)

         Rule 12(b)(6) permits a party to move for dismissal on the grounds that the complaint has failed “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the ...


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