Najafi v. Pompeo

Background

The plaintiffs included U.S. citizens and lawful permanent residents and their Iranian relatives or fiancées seeking visas. Their visa applications had been refused under Presidential Proclamation 9645, which restricts entry from Iran and other countries but allows case-by-case waivers. The proclamation identifies three waiver considerations: undue hardship from denying entry, no threat to U.S. national security or public safety, and entry being in the national interest.

The plaintiffs alleged that a State Department group called the “PP 9645 Brain Trust” had created guidance inconsistent with the proclamation. They specifically challenged an alleged requirement that consular officers obtain concurrence from the Visa Office and a consular manager before granting waivers. They also alleged that the government was intentionally delaying waiver decisions. Their complaint asserted claims under the Administrative Procedure Act (APA), a claim seeking a court order compelling government action, and a procedural due process claim.

The plaintiffs sought a mandatory preliminary injunction requiring the defendants to complete the waiver adjudications within 15 days. They argued likelihood of success only on their APA claims.

Court’s Analysis

The court held that the plaintiffs’ challenge to the alleged transfer or restriction of waiver authority was reviewable under the APA because the proclamation supplied objective standards concerning who had authority and discretion to decide waivers. The court also rejected the defendants’ argument that consular nonreviewability barred the challenge. That doctrine generally prevents judicial review of a consular officer’s decision to issue or deny a visa, but the plaintiffs were challenging the officer’s authority and the procedures used to implement the proclamation, and the beneficiary plaintiffs were still awaiting decisions.

The court disagreed with the defendants’ contention that the proclamation did not require waiver decisions at all. It relied on the proclamation’s waiver program, the Supreme Court’s discussion of that program, and State Department guidance stating that applicants subject to the proclamation but otherwise eligible for visas “must be considered for a waiver.”

The court nevertheless found that the plaintiffs had not shown likely success on their claim that waiver decisions were unreasonably delayed. It concluded that the APA did not provide a manageable standard for reviewing the timing of waiver decisions because the proclamation imposed no specific deadline or other timing requirement. Applying the factors commonly used to evaluate unreasonable agency delay, the court found that the complexity of national-security vetting, the lack of a required timetable, the competing demands on the agency, and the number of pending applications weighed against the plaintiffs. The court recognized that family separation and related harms weighed in their favor, but found those interests insufficient to overcome the lack of likely success.

The court also found that the plaintiffs had shown likely irreparable harm, but held that this stronger showing could not compensate for their failure to establish likely success. It further concluded that the balance of equities and the public interest did not favor requiring the government to act within 15 days because of the national-security and public-safety concerns involved.

Disposition

The court DENIED the plaintiffs’ motion for a preliminary injunction. It TERMINATED the defendants’ motion to dismiss without prejudice because the order addressed much of that motion, including APA reviewability and consular nonreviewability. The defendants were permitted to file a new motion to dismiss that took the order into account.