Emami v. Nielsen

Background

The case concerns Presidential Proclamation 9645, which restricted or suspended entry into the United States by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. Section 3(c) created a case-by-case waiver program. The plaintiffs alleged that the federal government effectively ignored that program and broadly denied waivers, causing family and personal disruption.

The opinion also addresses a related action, Pars, No. 18-cv-07818-JD. The two actions asserted identical claims under the Administrative Procedure Act and the Accardi doctrine concerning the waiver program. In an earlier ruling, the court granted plaintiffs summary judgment, finding that the government’s waiver-implementation guidance was arbitrary and capricious under the Administrative Procedure Act. The court then directed the parties to work toward a remedy, but found that the government later withdrew from representations about providing relief.

Consolidation and Class Definition

The court ordered the two actions consolidated for all purposes under Federal Rule of Civil Procedure 42. The consolidated action will proceed under the Emami case number, and the Pars case was closed. A new consolidated complaint was not required; the operative complaints will be read together.

The proposed class was defined as:

All applicants for visas who are nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who (1) were refused visas under INA 212(f) pursuant to Proclamation 9645 between December 8, 2017 and January 20, 2021; (2) did not obtain a waiver of that refusal; and (3) have not subsequently obtained a visa.

The court added exclusions for diversity visa applicants and individuals who reapplied for a visa after Proclamation 9645 was revoked.

Timeliness and Prejudice

The government argued that class certification was too late and would prejudice the government. The court rejected those arguments. It concluded that the timing resulted from the government’s litigation conduct and lengthy stays, not from undue delay by plaintiffs. The court also rejected the government’s argument that certification after summary judgment would create unfair “one-way intervention.” It explained that this concern generally applies to certain damages classes under Rule 23(b)(3), while the plaintiffs sought certification under Rule 23(b)(2), which generally concerns uniform declaratory or injunctive relief and does not ordinarily require notice or an opportunity for class members to opt out.

Rule 23 Requirements

Rule 23(a) requires numerosity, commonality, typicality, and adequacy. The court found numerosity because the class likely includes tens of thousands of people. It found commonality and typicality because the proposed class members challenged the same government practice—the lack of a properly administered waiver process—and relied on the same legal grounds.

The court excluded people who had reapplied for visas after the Proclamation was revoked. It found that any later visa denials for those individuals could have resulted from other, individualized reasons unrelated to the Proclamation’s waiver process, and that including them would destroy commonality.

The court found adequacy because the proposed representatives’ interests were aligned with the class, proposed class counsel were experienced and had no identified conflicts, and the active named plaintiffs had live claims. The appointed representatives were Nastaran Haji Heydari, Hojjatollah Azizikoutenaeni, Roghayeh Azizitkoutenaei, Farangis Emami, Farajollah Farnoudian, Mohammad Mehdi Mozaffary, Zahra Rouzebehani, Bahram Charktab Tabrizi, and Hossein Zamani Hosseinabadi.

Under Rule 23(b)(2), certification is proper when the opposing party has acted or refused to act on grounds generally applicable to the class, making final injunctive or declaratory relief appropriate for the class as a whole. The court found that requirement satisfied because the class challenged a single waiver practice and sought the opportunity for visa applications to be considered without the guidance previously found unlawful.

Disposition and Next Steps

The court granted certification under Rule 23(b)(2) for all remaining claims in the consolidated action. It appointed the nine named plaintiffs as class representatives and appointed Eric B. Evans, John A. Freedman, Max S. Wilson, Hammad A. Alam, Shabnam Lotfi, Veronica Sustic, and Naomi Tsu as class counsel. The court did not order any particular visa outcome for any individual. Instead, it directed the parties to meet and confer and file a proposed injunction for the certified class by April 12, 2024. Judge Donato stated that additional briefing on the remedy would not be accepted.