This is one of many legal challenges to the series of Trump's executive orders (EOs) known collectively as the "Travel Ban" or "Muslim Ban." This suit in particular challenged the waiver system that accompanied the ban, which was purportedly instated to prevent the EOs from arbitrarily denying people entry into the country.

Twenty six individuals who had been denied a travel visa, or whose relatives had been denied a travel visa as a result of the EOs, filed this putative class action lawsuit in the US District Court for the Northern District of California (in San Francisco) on March 13, 2018. District Judge James Donato was assigned to the case. The plaintiffs sued the President of the United States; the U.S. Attorney General; 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. Plaintiffs brought this case against defendants under the Administrative Procedure Act (APA), alleging defendants violated the Due Process Clause of the Fifth Amendment and the Immigration and Nationality Act (INA). The plaintiffs, represented by the Immigrant Advocacy and Litigation Center, Public Counsel, and private counsel, sought injunctive and declaratory relief.

Plaintiffs alleged that the Trump Administration's failure to grant visas to individuals because of their nationality was unconstitutional. They argued the resulting separation of U.S. citizens and lawful permanent residents from their families was in contravention of Congress' purpose in the INA—promoting family reunification. Therefore, the government's actions amounted to an arbitrary and capricious act in violation of the APA.

Plaintiffs also argued that the government's refusal to consider applicants' eligibility for waivers on a case-by-case basis or develop meaningful guidance was, as a matter of law, arbitrary and capricious and therefore a violation of the APA. The plaintiffs further alleged that the government targeted individuals with discriminatory intent based on national origin without any lawful justification in violation of the Due Process and Equal Protection guarantees of the Fifth Amendment. First, plaintiffs cited the lack of a provision for waivers coupled with the government’s blanket denials of visas to applicants targeted by EOs. Second, plaintiffs cited statements made by government officials concerning their intent and the application of the travel ban. As a result, plaintiffs asked the court to order the government to consider plaintiffs' eligibility for waivers.

Plaintiffs requested the certification of two classes: "Family Member Class" and "Visa Applicant Class." The Family Member Class was defined as US 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."

Plaintiffs filed their first amended complaint on July 29, 2018, and the government 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 plaintiffs failed to allege any constitutionally protected right for either plaintiff class. The court found that the equal protection claim assumed the EOs unconstitutionally excluded Muslims or illegally discriminated on the basis of nationality, but that the Supreme Court had already decided that these travel orders passed rational basis review in Trump v. Hawaii. Based on this precedent, the district court held that the government’s national security justification for the EOs was sufficient to stand against an equal protection challenge. Lastly, the court dismissed the mandamus claim because the APA claim would go forward and therefore plaintiffs would not have exhausted all other avenues for relief to make a writ of mandamus appropriate. 365 F. Supp. 3d 1009.

Plaintiffs filed their second amended complaint on February 23, 2019. On February 26, 2019, the government moved to consolidate this case with Pars Equality Center, et al. v. Pompeo, . 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, the government filed a motion to dismiss or obtain summary judgment on June 13, 2019. The motion argued the complaint should be dismissed for failure to state an actionable claim and that the existing waiver process was “not a sham” but rather an adequate procedure for the handling of thousands of visa applications.

A contentious period of discovery ensued throughout the rest of 2019 and into 2020. During this time, two 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. 365 F. Supp. 3d. 1009.

Discovery continued through 2020. But the EOs at issue were revoked by Joe Biden on his first day in office, January 20, 2021. This revocation was announced by way of Proclamation 10141 which also ordered the State Department to resume processing visa applications from people affected by the EOs. The Proclamation instructed the Secretary of State to provide a report including the number of visa applicants being considered for a waiver of the Travel Ban EOs’ restrictions, a plan for “expeditiously adjudicating” these applications, a proposal to ensure the reconsideration of denied applications under the revoked EOs, and a plan to ensure that the cases of re-applicants were not to be prejudiced as a result of a previous visa denial resulting from the revoked EOs.

This change in executive policy prompted mootness rulings and withdrawals of claims in other actions arising out of the implementation of the EOs. On February 11, 2021, the government filed a notice to the district court informing it of two mootness rulings issued by the Ninth and Sixth Circuits on appeals from travel ban litigation following Biden’s inauguration day proclamation. (One of the cases they cited in this notice, Arab American Civil Rights League v. Trump, can be found here in the Clearinghouse. In addition to notifying the court of these appellate decisions, the government asked the district court to dismiss the case.

Instead of dismissing the lawsuit on March 23, 2020, the court stayed proceedings pending DHS’ execution of President Biden’s January 20 Proclamation. The court also directed the parties to file a joint status update by June 7, 2021.

The parties filed their joint update on June 7, 2021. In the update, the parties explained why they have not reached a settlement. The plaintiffs claimed, among other things, that following the January 20 proclamation, the government invited them to reapply for visas, denying them the benefit of their earlier application date. On the other side, the government claimed that because the Proclamation undid the EOs that were the source of the harm experienced by plaintiffs, that there was no live case or controversy for the district court to adjudicate.

On June 16, 2021, District Judge Donato set a status conference for September 2, 2021. Plaintiffs moved to lift the stay of proceedings on July 13, 2021, and the government filed an opposition to his motion on July 27, 2021. As of this writing, no orders have been made by the district court on when proceedings will continue.

The case is ongoing.

Michael Beech - 03/30/2019
Alex Moody - 05/26/2020
Lauren Yu - 03/30/2021
Esteban Woo Kee - 08/08/2021


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