University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Emami v. Nielsen IM-CA-0140
Docket / Court 3:18-cv-01587-JD ( N.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Refugee/Visa Order
Attorney Organization National Immigration Project of the NLG
Public Counsel
Case Summary
This is one of many legal challenges to the series of Trump's executive orders known as the "Travel Ban" or "Muslim Ban." This suit in particular challenged the waiver system that accompanied the ban, which was instated to supposedly prevent the ban from arbitrarily denying people entry into the ... read more >
This is one of many legal challenges to the series of Trump's executive orders known as the "Travel Ban" or "Muslim Ban." This suit in particular challenged the waiver system that accompanied the ban, which was instated to supposedly prevent the ban from arbitrarily denying people entry into the country.

On March 13, 2018, 26 individuals who had been denied a travel visa, or whose relatives had been denied a travel visa under President Trump's "Travel Ban" Proclamation, filed this putative class action lawsuit in the U.S. District Court for the Northern District of California. The case was assigned to District Judge James Donato. The plaintiffs sued the President of the United States, the U.S. Attorney General and the Department of Justice, the Secretary and Department of Homeland Security, the Secretary of State and the State Department, and the Director of National Intelligence along with the Office of the Director of National Intelligence. The plaintiffs brought this case against defendants under the Administrative Procedures Act (APA), alleging the defendants violated the Due Process Clause of the Fifth Amendment and the Immigration and Nationals Act (INA). The plaintiffs, represented by the Immigrant Advocacy and Litigation Center, Public Counsel, and private counsel, sought injunctive and declaratory relief.

The named plaintiff was the U.S. citizen daughter of a widowed elderly Iranian man, who wanted to come and grieve with her because his son and her brother had just died of brain cancer. He never learned that he'd been rejected, as he died three weeks before the denial was issued. All of the plaintiffs had stories of how the travel ban kept family members apart in times of crises.

The plaintiffs alleged that the Trump Administration's failure to grant visas to individuals because of their nationality, was unconstitutional. They specifically alleged that the defendants' actions resulted in the indefinite separation of U.S. citizens and U.S. lawful permanent residents from their family members, and that this result was in contravention of Congress' purpose in enacting the INA—promoting family reunification—and thus amounted to an arbitrary and capricious act in violation of the APA. Plaintiffs also argued that Defendants' refusal to consider applicants' eligibility for waivers on a case-by-case basis or develop meaningful guidance was, as a matter of law, arbitrary, capricious, and not in accordance with the law. It therefore violated the APA. The plaintiffs further argued that the blanket denials of visas to applicants from banned countries without the opportunity to argue for a waiver from the Proclamation, together with statements made by defendants concerning their intent and the application of the travel ban, made clear that defendants targeted individuals for discriminatory treatment based on their country of origin or nationality, without any lawful justification, in violation of the Due Process and Equal Protection guarantees of the Fifth Amendment. The plaintiffs asked the court to order the defendants to consider the plaintiffs' eligibility for waivers.

The plaintiffs proposed two plaintiff classes: "Family Member Class" and "Visa Applicant Class." The Family Member Class is defined as U.S. citizens and permanent residents "with approved family-based visa petitions or whose family members have applied for visa categories covered by the ban, and whose family members have been or will be refused pursuant to the Proclamation without an opportunity to apply for and be meaningfully considered for a waiver or are awaiting adjudication of a waiver." The Visa Applicant Class is defined as "Iranian, Libyan, Somali, Syrian, and Yemeni nationals who have applied for immigrant or nonimmigrant visas that have been or will be refused pursuant to the Proclamation without an opportunity to apply for and be meaningfully considered for a waiver or are awaiting adjudication of a waiver."

The plaintiffs filed their first amended complaint on July 29, 2018, and the defendants moved to dismiss the complaint for failure to state a claim on September 12, 2018. On February 4, 2019, the court denied the motion to dismiss for the APA claim and granted the motion for the Fifth Amendment and mandamus claims. For the Fifth Amendment due process claim, the court held that the plaintiffs failed to allege any constitutionally protected right for either plaintiff class. The court found that equal protection claim assumed the Proclamation unconstitutionally excluded Muslims or illegally discriminated on the basis of nationality, but that the Supreme Court had already found that untrue in Trump v. Hawaii (IM-HI-0004 in this Clearinghouse). The claim would therefore be subject to rational basis review, and the defendants already provided a national security justification. Lastly, the court dismissed the mandamus claim because the APA claim would go forward, and therefore the plaintiffs would not have exhausted all other avenues for relief to make a writ of mandamus appropriate. On February 23, 2019, the plaintiffs filed their second amended complaint.

On February 26, 2019, the defendants moved to consolidate this case with Pars Equality Center, et al. v. Mike Pompeo, et al. (IM-WA-0040 in this Clearinghouse). After oral argument on April 11, 2019, the court denied the motion and decided to allow both cases to proceed, ordering the parties to work together to minimize duplication between the two cases.

In response to the second amended complaint from February, the defendants filed a motion to dismiss, or obtain summary judgment, on June 13, 2019. The motion argued that the complaint should be dismissed for failure to state an actionable claim, and that the existing waiver process was an adequate procedure to handle exceptional circumstances.

A contentious period of discovery ensued throughout the rest of 2019 and into 2020. During this time, two of the plaintiffs voluntarily dismissed their claims on October 30, 2019.

On June 5, 2020, the court granted in part and denied in part the motion to dismiss, following the same reasoning and outcome from the February 4, 2019 order that addressed the first amended complaint: the motion to dismiss was denied for the APA claim and granted for the Fifth Amendment and mandamus claims. In addition, the court denied summary judgment, and denied the opportunity for another round of pleading amendments.

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 ongoing.

Michael Beech - 03/30/2019
Alex Moody - 05/26/2020
Lauren Yu - 03/30/2021


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Equal Protection
Defendant-type
Jurisdiction-wide
Discrimination-basis
National origin discrimination
Immigration/Border
Admission - criteria
Admission - procedure
Constitutional rights
Temporary visitors
Visas - criteria
Visas - procedures
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Mandamus, 28 U.S.C. § 1361
Defendant(s) United States Department of State
Office of the Director of National Intelligence
President of the United States
United States Department of Homeland Security
Plaintiff Description (1) U.S. citizens and lawful permanent residents with approved family-based visa petitions or whose family members have applied for visa categories covered by the ban, and whose family members have been or will be refused pursuant to the Proclamation and (2) Iranian, Libyan, Somali, Syrian, and Yemeni nationals who have applied for immigrant or nonimmigrant visas that have been or will be refused pursuant to the Proclamation.
Indexed Lawyer Organizations National Immigration Project of the NLG
Public Counsel
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 03/13/2018
Case Ongoing Yes
Case Listing IM-WA-0040 : Pars Equality Center v. Pompeo (W.D. Wash.)
Additional Resources
click to show/hide detail
  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Proclamation 10141 of January 20, 2021 Ending Discriminatory Bans on Entry to the United States
Govinfo.gov
Date: Jan. 20, 2021
By: Joseph Biden
[ Detail ] [ External Link ]

  Presidential Executive Order on Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities
White House
Date: Oct. 24, 2017
By: United States
[ Detail ] [ External Link ]

  Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
www.whitehouse.gov
Date: Sep. 24, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ External Link ]

  Implementing Executive Order 13780 Following Supreme Court Ruling -- Guidance to Visa-Adjudicating Posts
Reuters
Date: Jun. 28, 2017
By: U.S. Department of State
[ Detail ] [ PDF ] [ External Link ]

  Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence
The White House
Date: Jun. 14, 2017
By: Donald Trump (White House)
[ Detail ] [ External Link ]

  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States
Date: Mar. 6, 2017
By: President Donald Trump (President of the United States)
[ Detail ] [ External Link ]

  Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security
The White House
Date: Feb. 1, 2017
By: Donald F. McGahn II, Counsel to the President (The White House)
[ Detail ] [ PDF ] [ External Link ]

  Statement by Acting Attorney General Sally Yates
https://www.nytimes.com/
Date: 1/30/2017
By: Acting Attorney General Sally Yates (Department of Justice)
[ Detail ] [ PDF ] [ External Link ]

  Statement By Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States
https://www.dhs.gov/
Date: 1/29/2017
By: DHS Secretary John Kelly (Department of Homeland Security)
Citation: https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states
[ Detail ] [ PDF ] [ External Link ]

  OLC Memo Re: Proposed Executive Order Entitled "Protecting the Nation from Foreign Terrorist Entry into the United States"
Date: Jan. 27, 2017
By: Curtis Gannon (U.S. Department of Justice, Office of Legal Counsel)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Court Docket(s)
N.D. Cal.
03/23/2021
3:18-cv-01587-JD
IM-CA-0140-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
N.D. Cal.
03/13/2018
Complaint [ECF# 1]
IM-CA-0140-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
02/04/2019
Order Re Motion to Dismiss [ECF# 74] (365 F.Supp.3d 1009)
IM-CA-0140-0004.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
02/23/2019
Second Amended Class Action Complaint [ECF# 75]
IM-CA-0140-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
06/13/2019
Defendants' Notice of Motion; Motion to Dismiss Or, Alternatively, For Summary Judgment; And Memorandum in Support [ECF# 98]
IM-CA-0140-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
06/05/2020
Order Re Motions to Dismiss or for Summary Judgment [ECF# 152] (465 F.Supp.3d 991)
IM-CA-0140-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Donato, James (N.D. Cal.) show/hide docs
IM-CA-0140-0004 | IM-CA-0140-0005 | IM-CA-0140-9000
Plaintiff's Lawyers Asimow, Daniel B. (California) show/hide docs
IM-CA-0140-9000
Azmi, Nimra H. (District of Columbia) show/hide docs
IM-CA-0140-0002 | IM-CA-0140-9000
Bauer, Mary Catherine (District of Columbia) show/hide docs
IM-CA-0140-9000
Evans, Eric (California) show/hide docs
IM-CA-0140-9000
Freedman, John A. (District of Columbia) show/hide docs
IM-CA-0140-9000
Lotfi, Shabnam (Wisconsin) show/hide docs
IM-CA-0140-0001 | IM-CA-0140-0002 | IM-CA-0140-9000
Romero, Luis Cortes (California) show/hide docs
IM-CA-0140-0001 | IM-CA-0140-9000
Rosenbaum, Mark Dale (California) show/hide docs
IM-CA-0140-0001 | IM-CA-0140-9000
Saei, Joseph E (District of Columbia) show/hide docs
IM-CA-0140-0002 | IM-CA-0140-9000
Shebaya, Sirine (District of Columbia) show/hide docs
IM-CA-0140-0002 | IM-CA-0140-9000
Smith, Johnathan James (District of Columbia) show/hide docs
IM-CA-0140-9000
Sustic, Veronica (Wisconsin) show/hide docs
IM-CA-0140-0002 | IM-CA-0140-9000
Defendant's Lawyers Flentje, August E. (District of Columbia) show/hide docs
IM-CA-0140-0003 | IM-CA-0140-9000
Grant, Nicole Patrice (District of Columbia) show/hide docs
IM-CA-0140-9000
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-CA-0140-0003
Kim, David (District of Columbia) show/hide docs
IM-CA-0140-0003 | IM-CA-0140-9000
Martinez, P. Angel (District of Columbia) show/hide docs
IM-CA-0140-0003 | IM-CA-0140-9000
Peachey, William Charles (District of Columbia) show/hide docs
IM-CA-0140-0003
Westwater, Gisela Ann (District of Columbia) show/hide docs
IM-CA-0140-0003
Young, Stacey Ilene (District of Columbia) show/hide docs
IM-CA-0140-0003 | IM-CA-0140-9000

- click to show/hide ALL -

new search
page permalink

- top of page -