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Didban v. Pompeo

United States District Court, District of Columbia

January 15, 2020

Saman DIDBAN, et al., Plaintiffs,
v.
Michael R. POMPEO, et al., Defendants.

Page 169

[Copyrighted Material Omitted]

Page 170

          Jennifer E. Nimer, Nimer Law LLC, Powell, OH, for Plaintiffs.

          Brian J. Field, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

         MEMORANDUM OPINION

         CHRISTOPHER R. COOPER, United States District Judge.

         Presidential Proclamation 9645 bans citizens of seven countries, including Iran, from entering the United States. But it allows consular officers to waive that restriction on a case-by-case basis. Plaintiffs Saman Didban, a United States legal permanent resident, and his wife, Fataneh Rostami, an Iranian national, submitted a waiver application two years ago that the Government has not yet processed. Arguing that this delay is unreasonable, Plaintiffs seek to compel the Government, under the Administrative Procedure Act and the Mandamus Act, to reach a decision on Ms. Rostami's application. Finding that the Government's delay is not unreasonable in light of the circumstances, the Court will grant the Government's motion to dismiss.

         I. Background

         A. Legal Background

         Under the Immigration and Nationality Act ("INA"), a U.S. citizen or legal permanent resident who wishes to bring a foreign national spouse to the United States must begin the immigration process by filing a Petition for Alien Relative (form I-130) with the United States Customs and Immigration Service ("USCIS"). 8 U.S.C. § 1154. If USCIS confirms that the I-130 form meets the threshold requirements, it sends the petition to the U.S. embassy with jurisdiction over the foreign spouse's residence. See 8 C.F.R. § 204.1(a)(1). The foreign spouse must then submit an Online Immigrant Visa and Alien Registration Application (form DS-260) and appear for an interview with a consular officer at the embassy.

         At the conclusion of the interview, "the consular officer must [either] issue [or] refuse the visa...." 22 C.F.R. § 42.81(a). "If the consular officer refuses the visa, he or she must inform the applicant of the provisions of law on which the refusal is based, and of any statutory provision under which administrative relief is available." 9 Foreign Affairs Manual ("FAM") § 504.1-3(g). "If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered." 22 C.F.R. § 42.81(e). At all times, the alien bears the burden of establishing that she "is not inadmissible" and "that [s]he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed." 8 U.S.C. § 1361.

         The INA grants broad authority to the President to control the admission of aliens. It states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Page 171

Id. § 1182(f). In September 2017, President Trump exercised this authority by signing Presidential Proclamation 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." 82 Fed.Reg. 45,161 (Sept. 24, 2017) ("the Proclamation"). The Proclamation arose out of the Secretary of Homeland Security's finding that "a small number of countries ... remain deficient... with respect to their identity-management and information-sharing capabilities, protocols, and practices" and that these deficiencies prevent the United States from adequately assessing whether foreign nationals from those countries pose national security threats.Id. at 45,161. With limited exceptions not at issue here, the President banned entry into the United States by nationals of seven countries, including Iran. Id. at 45,162, 45,165-67. Following several iterations of the restrictions and extensive litigation in the lower federal courts, the Supreme Court ultimately upheld the constitutionality of the present version of the ban. Trump v. Hawaii, ___ U.S. ___, 138 S.Ct. 2392, 2423, 201 L.Ed.2d 775 (2018).

         The Proclamation provides for waiver of its restrictions in individual cases. "[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...." Proclamation, 82 Fed.Reg. at 45,168. "A waiver may be granted only if a 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.

         The President did not instruct the Secretary of State and Secretary of Homeland Security on how they should implement this waiver provision, instead simply directing them to "coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants." Id. The Proclamation does, however, include specific examples of when the award of a waiver would be appropriate. These examples include when a foreign applicant "seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa," and for whom "the denial of entry would cause ... undue hardship." Id. at 45,169. As of September 2019, 9,473 waivers had been issued to visa applicants otherwise barred from entry by the Proclamation, while some 15,000 applicants remain under review. See U.S. Dep't of State, Implementation of Presidential Proclamation 9645 at 3 (Sept. 2019) (explaining that "nearly a third" of the 45,662 currently ineligible visa applicants "are likely to be issued visas, pursuant to waivers of P.P. 9645, following completion of national security checks").[1]

         B. Ms. Rostami's Visa and ...


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