Case: Darchini v. Pompeo

On July 22, 2019, fourteen Iranian American families represented by a private immigration lawyer filed a complaint for declaratory and injunctive relief and for a writ of mandamus in the U.S. District Court for the Central District of California (in Santa Ana) to contest the administrative delays in the adjudication of case-by-case waivers to Presidential Proclamation 9645. (Proclamation 9645 was the third of four executive orders issued by President Trump that placed restrictions on people who sought to travel from a number of majority Muslim countries into the US and is referred to as EO-3 below and in other entries in this collection). Plaintiffs classified themselves as belonging to one of two groups in the original complaint: “petitioner plaintiffs” who were US citizens and lawful permanent residents, and “beneficiary plaintiffs” the relatives or fiancées of the petitioners who were visa applicants and Iranian nationals. The plaintiffs claimed that the beneficiary group met all the requirements for obtaining family or fiancée based visas before their applications were refused pursuant to EO-3 and that the waiver process provided for by Sec. 3(c) of EO-3 was not properly followed by the State Department. The complaint named (in their official capacity) the Secretary of State, the State Department’s Passport and Visa Examiner, two members of the State Department’s “PP 9645 Brain Trust,” the acting Secretary of the Department of Homeland Security, and seven consular officials as defendants. The “PP 9645 Brain Trust” was, according to the complaint, a team within the State Department that promulgated the Department’s rules for the adjudication of Sec. 3(c) waivers.

The plaintiffs’ claims were based on the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment. First, the plaintiffs alleged that the federal government violated the APA’s requirement under 5 U.S.C. §555(b) to “conclude a matter presented to it” “within a reasonable time” by failing to adjudicate the beneficiary plaintiffs waiver applications within 90 days. Second, the plaintiffs alleged that the State Department’s “unlawful designation” policy of requiring final approval from consular managers (namely visa chiefs and consular section chiefs) of consular officers’ decisions regarding who should receive a Sec. 3(c) waiver was not authorized by EO-3 and thus amounted to a violation of the APA’s prohibition on arbitrary and capricious agency action (5 U.S.C. §706(2)(A) and (D)). The due process claims involved both substantive and procedural elements. The plaintiffs argued that the State Department’s policy on Sec. 3(c) waivers infringed on their liberty interest in maintaining the “integrity of the[ir] family unit” and that this policy deprived them of their ability to show that they met the statutory requirements for a visa. The plaintiffs sought declaratory and injunctive relief as well as attorney’s fees to remedy these alleged violations. The case was assigned to District Judge James V. Selna and Magistrate Judge Douglas F. McCormick.

Five days after they filed their complaint, the plaintiffs moved for a preliminary injunction on July 27, 2019. In this motion, they asked the district court to declare the government’s failure to “process, adjudicate, and issue” a reasonable decision on the plaintiffs waiver applications unlawful and to order the government to adjudicate waiver requests for the beneficiary plaintiffs within 15 days. Before any rulings were made on the merits of the complaint and preliminary injunction, the plaintiffs filed a motion for expedited production of administrative records on July 31, 2019. Here, the plaintiffs requested the promulgating guidance and policies of EO-3 and argued that this information was necessary so that the waiver adjudication process could be “clearly and definitively defined” for the district court before the hearing on the preliminary injunction. The government filed oppositions to both plaintiff motions on August 16, 2019. Magistrate Judge McCormick heard arguments on this expedited discovery motion on August 27, 2019, and denied the motion on the same day. The magistrate determined that the plaintiffs had not shown that the requested information was necessary for the court to fairly rule on the merits of the preliminary injunction.

The government filed a supplemental declaration in opposition to the preliminary injunction request on September 6, 2019. In this notice, they informed the court that the consular officer had granted waivers and issued nonimmigrant visas to two of the beneficiary plaintiffs and that a third beneficiary plaintiff was being considered for a waiver. In addition to providing these facts, the government asked the court to deny the motion for preliminary injunction and dismiss the claims of the three plaintiff-families as moot.

Based on a sentence in the government’s August 16 filing in opposition to the preliminary injunction that said “were the Court to order the State Department to decide the waiver requests within the next two weeks, the State Department would likely deny the waivers on the ground that the national-security and public-safety vetting required by the Proclamation has not yet been completed,” the plaintiffs filed a Rule 11 motion for sanctions on September 9, 2019, against the government defendants and their counsel for what the plaintiffs described as “implicit threatened retaliation.”

District Judge Selna heard arguments on the motion for preliminary injunction on September 16, 2019, and issued an order and opinion denying the motion on September 24. The court found that the question of whether the requested preliminary injunction would save the plaintiffs from irreparable harm was speculative because there was no guarantee that an injunction mandating the government to process the waiver requests would result in a grant of those waivers. As a result, the court held that the plaintiffs did not meet the high standard necessary for a preliminary injunction. 2019 WL 6841991. The district judge ruled on the sanctions issue on October 3, 2019, holding that the government’s reasoning for opposing the 15 day adjudication mandate requested by the plaintiffs in their preliminary injunction motion was not improper or meritorious of sanctions. 2019 WL 6872902.

On October 15, 2019, the government filed a motion to dismiss the lawsuit for failure to state a claim. Before a hearing could be held on this motion, four of the plaintiff families voluntarily dismissed their claims on November 13, 2019, leaving ten families remaining as plaintiffs.

The district court held a hearing on the motion to dismiss on December 3, 2019, and issued an order granting the motion on the same day. While the district court disagreed with the government’s argument that the plaintiffs’ claims were not justiciable under the APA, it was persuaded by the government’s arguments that those claims failed on the merits. First, the plaintiff’s unreasonable delay APA claim failed, according to the district court, because neither EO-3 nor the Immigration and Nationality Act (that EO-3 was issued pursuant to) required a 90 day deadline for the State Department to adjudicate decisions on waivers to visa denials. Second, District Judge Selna disagreed with the plaintiff’s argument that the State Department’s alleged practice of requiring consular section chiefs to agree with consular officers’ determinations regarding waivers constituted an unlawful agency action under the APA (5 U.S.C. §706(2)(a) and (d)) and dismissed this claim. Third, the district court held that the complaint’s Fifth Amendment claim failed, citing the 2015 Supreme Court decision Kerry v. Din (135 S.Ct. 2128), because unadmitted nonresident aliens do not have a right of entry to the US. and because the right to live with non-citizen family members is not a liberty interest protected by the Due Process Clause. Lastly, the court made a finding that the plaintiffs did not adequately allege that the government owed them a clear, non-discretionary duty, and as a result, the mandamus claim was dismissed. Because the plaintiffs’ counsel declined leave to amend at the hearing, the court initially ordered that the dismissal would be with prejudice. 2019 WL 7195621.

Three days after their complaint was dismissed, the plaintiffs’ counsel filed a paper exaplaining that his decision during the hearing to decline the opportunity to file an amended complaint had been in error; he asked the court to amend its December 3 order to allow for a re-filing of the complaint. The court granted this request in a December 10, 2019 order, amending the dismissal to be without prejudice to allow re-pleading within twenty days.

The plaintiffs met this deadline and filed an amended complaint on December 30, 2019. Despite their dismissal on December 3, 2019, the plaintiffs included the exact same arguments for their APA claims and mandamus claim in this amended complaint as those in the original complaint. The due process claim was also reproduced in the amended complaint but included an additional four paragraphs that elaborated on why the State Department’s implementation of the waiver scheme constituted a violation of liberty and property interests. The amended complaint added a Fifth Amendment equal protection claim that was not included in the original complaint. In this claim, the plaintiffs argued that new visa applicants seeking waivers to EO-3 have their waivers adjudicated by an automated process that was not in place for the beneficiary plaintiffs and that the failure to use this process for the beneficiary plaintiffs amounted to a violation of their right to equal protection.

In response to the amended complaint, the government filed another motion to dismiss on January 13, 2020. A plaintiff family left the lawsuit on January 18, 2020, and another family voluntarily dismissed their claims on February 20, 2020, leaving eight families as plaintiffs.

While a hearing on the renewed motion to dismiss was originally scheduled for March 16, 2020, the district court vacated the hearing date and asked the parties to submit requests for oral argument. The plaintiffs requested a hearing but the district court found that oral argument would not be necessary to decide the motion and instead issued an opinion granting the motion to dismiss on March 18, 2020. District Judge Selna held that the plaintiffs did have standing to bring their claims against the government and that the plaintiffs’ APA claims were justiciable by the district court. However, on the merits of the APA and Fifth Amendment claims, the district court made the same findings as its December 3, 2019, order and opinions. As for the added equal protection claim, the court found that the only distinguishing factor between the plaintiffs and those visa applicants whose claims were processed by the automated system was “when the new processing system went into effect.” Because classifications based on timing are not “suspect or quasi-suspect,” the district court applied rational basis review and held that the system did not violate equal protection. All substantive claims were dismissed without prejudice including the mandamus claim as Judge Selna found that the plaintiffs had not established that the government owed them a “clear non-discretionary duty.” 2020 WL 3051089.

Two days after the amended complaint was dismissed, the plaintiffs appealed the dismissal to the Court of Appeals for the Ninth Circuit which opened a new docket (No. 20-55325) on March 20, 2020. The case was released from mediation on July 29, 2020, and the parties filed their briefs later that year. The Court of Appeals scheduled oral argument for March 2, 2021. However, this hearing was never held because President Biden revoked the travel ban EOs upon his inauguration on January 20, 2021. As a result, the Ninth Circuit held that the case was moot and ordered that the action be dismissed on February 9, 2021. The Court of Appeals noted that President Biden’s inaugural proclamation which undid the travel ban also directed the State Department to resume visa processing “in a manner similar to that which Plaintiff-Appellants seek in their operative complaint.” 2021 WL 1226734.

The Court of Appeals issued its mandate on April 6, 2021, ending the case.