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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 ...