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.
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, 138 S.Ct. 2392,
2423 (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 Waiver Applications
On
November 24, 2015, Mr. Didban filed an I-130 Petition on
behalf of his wife, Ms. Rostami. Compl. ¶ 57. On July
16, 2017, Ms. Rostami submitted her DS-260 form, along with
the applicable fees and documents. Id. ¶ 58. On
December 3, 2017, Ms. Rostami submitted Supplemental
Questions for Visa Application form (D-5535), after receiving
a request from the embassy to do so. Id. ¶ 59.
On
December 28, 2017, Ms. Rostami was interviewed by a consular
officer of the U.S. Embassy in Ankara, Turkey. Id.
¶ 60. During the interview, she attempted to give the
consular officer a statement explaining her eligibility for
waiver but, according to her, the consular officer refused to
accept the document, explaining that she did not need to file
anything in order to be considered for waiver. Id.
¶ 62. At the conclusion of the interview, Ms.
Rostami's visa application was refused pursuant to the
Proclamation. Id. ¶ 62; Exh. E. After making an
initial assessment that Ms. Rostami appeared to meet the
first two prongs of the waiver analysis (personal hardship
and national interest), the officer referred her waiver
application for further review regarding whether her entry
would “pose a threat to the national security or public
safety of the United States.” Proclamation, 82 Fed.
Reg. at 45, 168. Since then, USCIS has listed her waiver
application as undergoing administrative processing. Compl.
¶¶ 64-65. The Government has informed Ms. Rostami
that applying for a waiver “can be a lengthy process,
and until the consular officer can make an individualized
determination on these three factors, your visa application
will remain refused under Section 212(f). You will be
contacted with a final determination on your visa application
as soon as practicable.” Id. Exh. H.
On
March 27, 2019, after waiting fifteen months for a decision
from USCIS, Plaintiffs filed a petition for writ of mandamus
and complaint for declaratory relief in this Court.
Plaintiffs do not seek to compel the Government to grant Ms.
Rostami a waiver, but merely “challeng[e] the
Embassy's authority to refuse to adjudicate Plaintiff
Rostami's immigrant visa application.” Id.
¶ 13. Plaintiffs request an order directing the
Government to adjudicate Ms. Rostami's waiver
application. According to Plaintiffs, a declaratory judgment
would be proper under the Administrative Procedure Act
(“APA”), which grants courts the authority to
“compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1).
Alternatively, they seek a writ of mandamus under the
Mandamus Act, 28 U.S.C. § 1361, which grants district
courts jurisdiction to hear “action[s] in the nature of
mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff.” Id. 33-34 (quoting 28 U.S.C.
§ 1361).
The
Government moves to dismiss Plaintiffs' claims. It raises
various objections under Federal Rule of Civil Procedure
12(b)(1) to this Court's subject matter jurisdiction.
Even assuming that this Court has jurisdiction, the
Government also argues that Plaintiffs have failed to state a
claim under Federal Rule of Civil Procedure 12(b)(6) ...