Zafarmand v. Pompeo

Background

The plaintiffs were three groups: U.S. citizens who submitted visa applications for Iranian siblings or parents; those Iranian relatives, identified as beneficiary plaintiffs; and other Iranian relatives, identified as derivative plaintiffs. They sued the Department of Homeland Security, the Department of State, and Michael R. Pompeo in his official capacity as Secretary of State.

The plaintiffs challenged alleged delays in adjudicating case-by-case waivers under Presidential Proclamation 9645. That proclamation restricted the entry of Iranian nationals and allowed consular officers or specified Customs and Border Protection officials to grant waivers when the applicant satisfied requirements involving undue hardship, national security and public safety, and the national interest. The plaintiffs alleged that their waiver applications had remained pending for between nineteen and thirty-two months as of the order. They also alleged that defendants had adopted secret guidance requiring concurrence from additional officials, offices, and contractors before a visa could be issued.

The complaint asserted four claims: unreasonable delay under the Administrative Procedure Act; arbitrary and unlawful agency action under the Administrative Procedure Act; mandamus, meaning a court order requiring an official to perform a required duty; and procedural due process violations.

Preliminary Injunction

The plaintiffs sought an order declaring the alleged transfer of waiver authority unlawful and requiring defendants to adjudicate the beneficiary plaintiffs’ waiver requests within forty-five days. A preliminary injunction is an order issued before final judgment. The court explained that the plaintiffs had to show, among other things, likely success on the merits, likely irreparable harm, and that the balance of equities and public interest favored an injunction.

The court rejected defendants’ arguments that the claims could not be reviewed. It concluded that the plaintiffs were challenging implementation of the proclamation by federal agencies, not the President’s action alone; that the Administrative Procedure Act provided a basis for their claims; that the statute did not bar review; and that the doctrine generally preventing review of consular visa decisions did not apply because the plaintiffs challenged alleged failures to act rather than completed visa decisions.

For the unreasonable-delay claim, the court applied six factors developed for evaluating agency delay. The court found that the time already spent—nineteen to thirty-two months—was not unreasonable in light of the security review’s complexity, the need for interagency coordination, the national-security purpose of the proclamation, and the absence of a specified timetable. The court found that the plaintiffs’ family-separation hardships favored relief, but that national-security concerns, competing agency priorities, and approximately 13,800 pending waiver applications weighed against expedited relief. The court therefore found that the plaintiffs had not shown a likelihood of success on the unreasonable-delay claim.

For the claim concerning who could participate in waiver adjudication, the court found that the plaintiffs had not shown that consular managers, visa chiefs, consular section chiefs, or Visa Office employees fell outside the relatively broad statutory and regulatory definition of “consular officer.” The court also found that the evidence did not clearly establish that Quality Support, Inc. contractors made final waiver decisions rather than providing evaluations or information for consular officers to consider. The plaintiffs therefore had not shown a likelihood of success on that claim either.

The court found that the plaintiffs had shown a likelihood of irreparable injury from continued family separation. But it concluded that the balance of equities and public interest did not favor an order placing the plaintiffs ahead of thousands of other applicants or requiring decisions within forty-five days. The court denied the motion for a preliminary injunction, while urging defendants to evaluate the waiver requests as quickly as possible.

Motion to Dismiss

Defendants moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns subject-matter jurisdiction, and Rule 12(b)(6) concerns whether a complaint states a legally sufficient claim. The court rejected defendants’ jurisdictional arguments and held that it had authority to review the plaintiffs’ claims.

First Claim: Unreasonable Delay

The court applied the same six delay factors at the motion-to-dismiss stage and reached the same conclusion that the factors favored defendants. It granted dismissal of the first claim and dismissed it without prejudice to refiling at a later date.

Second Claim: Administrative Procedure Act Challenges

The plaintiffs alleged that defendants failed to follow legally required procedures and acted arbitrarily and capriciously by allowing additional officials and a contractor to participate in waiver decisions, and by failing to use enhanced automated screening. The court held that the complaint did not plead enough facts to show that the identified officials were not “consular officers” under the applicable definitions. It also found that the cited contractor email did not establish that the contractor made final decisions. The court further found that the proclamation did not require use of the enhanced automated screening system and that the allegation of a “perpetual loop” lacked adequate factual support. The court granted dismissal of the second claim with leave to amend to cure the identified deficiencies.

Third Claim: Mandamus

The court dismissed the mandamus claim. It held that the claim depended on the first two claims and that the plaintiffs had not adequately alleged a clear, nondiscretionary duty to decide their waivers within a fixed time, to have the review conducted solely by a consular officer without assistance from others, or to use the enhanced automated screening process. The dismissal was with leave to amend.

Fourth Claim: Procedural Due Process

The plaintiffs alleged that delays, the alleged assignment of authority to other officials, and the failure to use enhanced screening deprived them of constitutional rights without adequate procedures. The court held that they had not plausibly alleged a protected liberty or property interest. It found no constitutional right for the noncitizen relatives to enter the United States based on their family relationships, and the plaintiffs did not identify a statute creating the claimed right to have their waiver applications processed in the manner they demanded. The proclamation itself disclaimed creation of enforceable rights, and waiver decisions were discretionary. The court granted dismissal of the fourth claim with leave to amend.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction. It granted defendants’ motion to dismiss: the first claim was dismissed without prejudice to refiling, and the second through fourth claims were dismissed with leave to amend. Any first amended complaint was due by September 3, 2020.