On July 31, 2018, two nonprofit organizations and fifteen individuals filed this class-action lawsuit in the U.S. District Court for the Western District of Washington, challenging the Trump Administration's implementation of the waiver provision of the Travel Ban (Presidential Proclamation No. 9645). The Travel Ban indefinitely banned millions of nationals of five Muslim-majority countries from entering the United States. Pars Equality Center and OneAmerica are immigrant and refugee advocacy organizations, and the individual plaintiffs are U.S. citizens, foreign nationals lawfully present in the U.S., and individuals abroad who were been affected by the Travel Ban and the implementation of its waiver provision. The plaintiffs sued the Department of Homeland Security, the Department of State, and U.S. Customs and Border Protection, alleging that the waiver process under the Travel Ban was being implemented in an unduly restrictive manner, violating the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment. The plaintiffs—represented by private counsel, Asian Americans Advancing Justice, the Council on American-Islamic Relations, the National Immigration Law Center, and the International Refugee Assistance Project—sought declaratory and injunctive relief, as well as attorneys' fees and costs. Specifically, the plaintiffs requested that the waiver provision be enjoined, that any agency guidance and policies implementing that provision be vacated and remanded to the agencies, and that the agencies be directed to issue new guidance in conformance with the APA, the Immigration and Nationality Act, and the Constitution.
Furthermore, the plaintiffs sought to define the class as: "Individuals in the United States with an approved petition to be reunited with family members who are (i) a national of Iran, Libya, Somalia, Syria, or Yemen, (ii) subject to the Proclamation, and (iii) currently awaiting a decision on a waiver or have been denied a waiver; Nationals of the Designated Countries who are lawfully present in the United States who, but for the uncertainty created by the Proclamation and Defendants’ implementation of the waiver provision, wish to travel abroad and return to the United States; and Individuals who have applied for a visa who are (i) nationals of the Designated Countries, (ii) subject to the Proclamation, and (iii) currently awaiting a decision on a waiver or have been denied a waiver." The case was assigned to Judge Benjamin H. Settle.
On August 1, 2018, the plaintiffs notified the court of a related class-action case,
Doe v. Trump, challenging the Travel Ban (
IM-WA-0030 in this Clearinghouse). The present case was reassigned to Judge James L. Robart, the same judge assigned to
Doe v. Trump.
On September 6, 2018, the defendants filed a motion to transfer this case, but the defendants disagreed with the plaintiffs about the relation of this case to
Doe v. Trump. Instead, the defendants argued that this case should either be stayed or transferred to the Northern District of California, where another class-action case,
Emami, et al. v. Nielsen, et al. was pending (
IM-CA-0140 in this Clearinghouse).
On December 12, 2018, the court granted the defendants' motion to transfer this case to the Northern District of California. 2018 WL 6523135. The case was transferred and given a new docket number, 3:18-cv-07818. Judge James Donato was assigned to the case.
On February 20, 2019, the defendants filed a motion to either consolidate this case with the
Emami case or stay this case pending the outcome of the proceedings in
Emami to avoid duplicative litigation. The plaintiffs opposed the defendants' proposed complete merger of this case with
Emami, arguing that such a merger would unnecessarily delay these proceedings further and deprive this case of its independent character.
The court heard oral argument on April 11, 2019, and decided to allow both cases to proceed, with the understanding that the parties would have to communicate so as to prevent any duplicative actions. The parties then proceeded with discovery.
On June 13, 2019, the defendants filed a motion to dismiss the plaintiffs' complaint for failure to state a claim; and, in the alternative, a motion for summary judgment. The court denied the motion to dismiss for the APA claim and granted the motion to dismiss for the Fifth Amendment claim on June 5, 2020. The court also denied summary judgment. For the Fifth Amendment claim, the court held that the plaintiffs failed to "allege a deprivation of an interest protected by the Due Process Clause."
Subsequently, discovery continued.
After the Trump Administration concluded, President Biden revoked the Travel Ban and ordered that visa applications resume processing on January 20, 2021 (Presidential Proclamation No. 10141). The Secretary of State was also given 45 days to provide a report detailing the number of visa applicants being considered for a waiver when Trump signed the Travel Ban, a proposal for "expeditiously adjudicating" their pending visa applications, reconsideration of denied applications, and a way to ensure that cases of reapplicants are not prejudiced as a result of a previous visa denial.
The case is ongoing.
Elisabeth Ng - 11/14/2019
Sam Kulhanek - 02/05/2020
Lauren Yu - 03/31/2021
compress summary
