Emami v. Nielsen

Background

These related cases challenge the government’s implementation of Presidential Proclamation 9645, which restricted or suspended entry into the United States for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The plaintiffs focused on nationals of Iran, Libya, Somalia, Syria, and Yemen and challenged the government’s waiver process. They alleged that the government created waiver guidance but systematically ignored it, denied waivers without proper notice or an opportunity to provide evidence, and prevented consular officers from exercising the discretion contemplated by the Proclamation and federal law.

The Emami plaintiffs filed a second amended complaint after the court previously dismissed some claims with leave to amend. The Pars case was later transferred to the court. The government moved to dismiss or, alternatively, for summary judgment in both cases.

Pars case

The court denied the government’s request to dismiss the Pars plaintiffs’ claims for lack of a justiciable controversy. The plaintiffs were challenging government policies and practices for implementing the waiver program, not asking the court to review the merits of any particular consular officer’s decision.

The court denied dismissal of the Pars plaintiffs’ Administrative Procedure Act claim. It concluded that the plaintiffs had identified final agency actions that could be reviewed and had plausibly alleged conflicts between the government’s actions, federal regulations, the Proclamation, and the Immigration and Nationality Act. The court also declined to dismiss the allegation that the government issued guidance without the notice-and-comment process required for some agency rules. The court stated that the government could raise that argument later after the factual record developed.

The court also denied dismissal of the Pars plaintiffs’ Accardi claim. The Accardi doctrine is a rule requiring government agencies to follow their own procedures when those procedures affect people’s rights. The court rejected the government’s argument that the doctrine could not apply because the relevant guidance was not a formal regulation or internal document. The court also rejected the argument that a remand to the agency would be the only possible remedy.

The court granted the government’s motion to dismiss the Pars plaintiffs’ Fifth Amendment procedural-due-process claim. It relied on its earlier conclusion that the plaintiffs could not allege the deprivation of an interest protected by the Due Process Clause and declined to reconsider that conclusion based on the authority the plaintiffs cited.

Emami case

The court denied the government’s motion to dismiss the Emami plaintiffs’ first claim under the Administrative Procedure Act. That claim alleged that the government failed to follow its own policies and procedures in administering the waiver program and sought relief under the Accardi doctrine. The court adhered to its earlier conclusion that the claim was legally viable.

The court granted dismissal of the second and third claims under the Fifth Amendment. Those claims involved due process and equal protection. The court found no reason to change its earlier conclusions that the plaintiffs could not allege a protected due-process interest and that the equal-protection theory depended on propositions the Supreme Court had rejected when reviewing the Proclamation.

The court also granted dismissal of the Emami plaintiffs’ mandamus claim. Mandamus is an extraordinary remedy used to compel a federal official to perform a clear, nondiscretionary duty when no adequate alternative remedy exists. The plaintiffs had withdrawn their allegation that the government failed to develop meaningful guidance. Their remaining allegation concerned delays in deciding individual visa and waiver applications, but the court found no legal source requiring decisions within a specified time and concluded that those decisions were discretionary.

The court dismissed portions of the second amended complaint alleging that the government had issued no waiver guidance. It noted that the plaintiffs’ own exhibits showed that the State Department had identified online postings as its outward-facing waiver guidance, and the plaintiffs’ opposition clarified that their actual position was that the guidance was not followed, was arbitrary and capricious, or violated constitutional rights.

Summary judgment

The court denied the government’s motions for summary judgment without prejudice in both cases. The government relied on an administrative record to argue that it had applied the waiver provision in an orderly manner. The court concluded that this did not resolve the Accardi claims, which alleged that the government failed to follow its own rules. It also found that discovery disputes showed disagreements about material facts and about what the administrative record should contain. The court further questioned whether the plaintiffs had received a full and fair opportunity to conduct discovery and test the government’s evidence.

Disposition

In Pars Equality Center v. Pompeo, the motion to dismiss was denied as to the Administrative Procedure Act and Accardi claims and granted as to the Fifth Amendment claim. The summary-judgment motion was denied without prejudice.

In Emami v. Nielsen, the motion to dismiss was denied as to the Administrative Procedure Act claim and granted as to the Fifth Amendment due-process and equal-protection claims and the mandamus claim. The summary-judgment motion was denied without prejudice. The court declined to provide another round of pleading amendments to either group of plaintiffs.