CLOSED,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18-cv-01587-JD

Emami v. Nielsen et al Assigned to: Judge James Donato Relate Case Case: 3:18-cv-07818-JD Cause: 05:702 Administrative Procedure Act

Date Filed: 03/13/2018 Date Terminated: 03/23/2021 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Farangis Emami

represented by Daniel B. Asimow Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 415-471-3100 Fax: 415-471-3400 Email: daniel.asimow@arnoldporter.com ATTORNEY TO BE NOTICED

Eric Evans Mayer Brown LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 650-331-2000 Fax: 650 331-2060 Email: eevans@mayerbrown.com ATTORNEY TO BE NOTICED

John A. Freedman Arnold and Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 (202) 942-5316 Fax: (202) 942-5999

Email: john.freedman@arnoldporter.com ATTORNEY TO BE NOTICED
Johnathan James Smith Muslim Advocates P.O. Box 34440 Washingon, DC 20043 202-897-1897 Fax: 202-508-1007 Email: johnathan@muslimadvocates.org TERMINATED: 02/04/2019
Joseph E Saei Muslim Advocates PO Box 34440 Washington, DC 20043 202-873-1550 Email: yusuf@muslimadvocates.org TERMINATED: 07/22/2019
Mark Dale Rosenbaum Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977 Fax: (213) 385-9089 Email: mrosenbaum@publiccounsel.org TERMINATED: 08/23/2018
Mary Catherine Bauer Muslim Advocates P.O. Box 34440 Washington, DC 20043 (202) 873-1550 Email: mary@muslimadvocates.org TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan Muslim Advocates

P.O. Box 34440 Washington, DC 20043 (202) 897-1892 Fax: (202) 508-1007 Email: matthew@muslimadvocates.org ATTORNEY TO BE NOTICED
Nimra Azmi Muslim Advocates PO Box 34440 Washington, DC 20043 202-897-2564 Fax: 202-508-1007 Email: nimra@muslimadvocates.org TERMINATED: 09/09/2020
Sirine Shebaya National Immigration Project of the National Lawyers' G P.O. Box 42219 Washington, DC 20015 202-897-1897 Fax: 202-508-1007 Email: sirine@nipnlg.org TERMINATED: 08/19/2019
Veronica Sustic Lotfi Legal LLC 22 E Mifflin St Ste 302 Madison, WI 53703 608-259-6226 Fax: 208-977-9974 Email: veronica@lotfilegal.com ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero Immigrant Advocacy & Litigation Center, PLLC 19309 68th Avenue South Suite R102 Kent, WA 98032

Plaintiff Behnaz Malekghaeini

(253) 872-4730 Fax: 2532371591 Email: lcortes@ia-lc.com ATTORNEY TO BE NOTICED
Shabnam Lotfi Lotfi Legal LLC 22 E Mifflin St Ste 302 Madison, WI 53703 608-259-6226 Fax: 208-977-9974 Email: shabnam@lotfilegal.com ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021

Plaintiff Fathollah Tolou Beydokhti

PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019

Plaintiff Maryam Mozafari

Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans

(See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Hoda Mehrabi Mohammed Abadi

Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020

Plaintiff Mitra Farnoodian-Tedrick

Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address)

Plaintiff Afrooz Kharazmi

TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019

Plaintiff Tannaz Toloubeydokhti

Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED

Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address)

Plaintiff Mahdi Afshar Arjmand

ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020

Plaintiff Roghayeh Azizikoutenaei

Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer

Plaintiff Behnam Babalou

(See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address)

Plaintiff Ehsan Heidaryan

TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED

Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero

Plaintiff Bamshad Azizi

(See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address)

Plaintiff Afshan Alamshah Zadeh

TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018

Plaintiff Bahram Charkhtab Tabrizi

Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith

Plaintiff
Soheil Vazehrad TERMINATED: 01/06/2020

(See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address)

ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maral Charkhtab Tabrizi

Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi

Plaintiff Hojjatollah Azizikoutenaei

(See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018

Plaintiff Nastaran Hajiheydari

Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED

Zahra Rouzbehani

represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address)

Plaintiff
Atefehossadat Motavaliabyazani TERMINATED: 01/06/2020

ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Najmeh Maharlouei

Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum

Plaintiff Farajollah Farnoudian

(See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address)

ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Clyde Jean Tedrick, II

represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic

Plaintiff Mohammad Mehdi Mozaffary

(See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address)

Plaintiff Khalil Ali Nagi

ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Luis A Romero Lopez and Romero APC 551 Fifth Avenue Suite 417 New York, NY 10176 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ismail Alghazali

Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Luis A Romero (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019

Plaintiff Hezam Alarqaban

represented by Luis A Romero (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address)

Plaintiff Abdurraouf Gseaa

ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Luis A Romero (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei

Plaintiff Sudi Wardere

(See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Luis A Romero (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Khadija Aden

John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Luis A Romero (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address)

Plaintiff
Aziz Altuhaif TERMINATED: 04/22/2019

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Luis A Romero (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica Sustic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi

Plaintiff Mohamad Hamami

(See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mark Dale Rosenbaum (See above for address) TERMINATED: 08/23/2018
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address)

Plaintiff Najib Adi

TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE

Plaintiff Malik Almathil

Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address) ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei

Plaintiff
Ali Altuhaif TERMINATED: 04/22/2019

(See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel B. Asimow (See above for address) ATTORNEY TO BE NOTICED
Eric Evans (See above for address) ATTORNEY TO BE NOTICED
John A. Freedman (See above for address)

V. Defendant

ATTORNEY TO BE NOTICED
Johnathan James Smith (See above for address) TERMINATED: 02/04/2019
Joseph E Saei (See above for address) TERMINATED: 07/22/2019
Mary Catherine Bauer (See above for address) TERMINATED: 06/17/2021 PRO HAC VICE
Matthew William Callahan (See above for address) ATTORNEY TO BE NOTICED
Nimra Azmi (See above for address) TERMINATED: 09/09/2020
Sirine Shebaya (See above for address) TERMINATED: 08/19/2019
Veronica Sustic (See above for address) ATTORNEY TO BE NOTICED
Luis Alberto Cortes Romero (See above for address) ATTORNEY TO BE NOTICED
Shabnam Lotfi (See above for address) ATTORNEY TO BE NOTICED

Kirstjen Nielsen in her official capacity as Secretary of Homeland Security

represented by August Flentje U.S. Department of Justice Civil Division 950 Pennsylvania Avenue NW Room 3613 Washington, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
David Kim United States Department of Justice Civil Division, Office of Immigration Litigation District Court Section P.O. Box 878, Ben Franklin Station Washington, DC 20044 (202) 532-4094 Email: david.kim4@usdoj.gov ATTORNEY TO BE NOTICED
Nicole Patrice Grant United States Department of Justice Civil Division, Office of Immigration Litigation District Court Section P.O. Box 878, Ben Franklin Station Washington, DC 20044 (202) 598-2731 Fax: (202) 305-7000 Email: nicole.p.grant@usdoj.gov ATTORNEY TO BE NOTICED
P. Angel Martinez U.S. Department of Justice Civil Division, Office of Immigration Litigation District Court Section P.O. Box 878, Ben Franklin Station Washington, DC 20044 (202) 598-8085 Email: Angel.Martinez2@usdoj.gov ATTORNEY TO BE NOTICED

Defendant The Honorable Rex W. Tillerson in his official capacity as Secretary of State TERMINATED: 07/30/2018
Defendant Jefferson B. Sessions, III in his official capacity as an Attorney General of the United States TERMINATED: 07/30/2018

Stacey Ilene Young United States Department of Justice Civil Division, Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 305-7171 Fax: (202) 305-7000 Email: stacey.young@usdoj.gov ATTORNEY TO BE NOTICED
represented by David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant Daniel Coats in his official capacity as Director of National Intelligence TERMINATED: 07/30/2018
Defendant Donald J. Trump as President of the United States of America TERMINATED: 07/30/2018

P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez

Defendant Alex Tse TERMINATED: 07/30/2018
Defendant US Department of State

(See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address)

Defendant US Department of Justice TERMINATED: 07/30/2018
Defendant US Department of Homeland Security

ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED

Defendant Office of the Director of National Intelligence TERMINATED: 07/30/2018
Defendant Michael R. Pompeo in his official capacity as Secretary of State

Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
P. Angel Martinez (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by P. Angel Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED

Defendant Kevin K. McAleenan in his official capacity as Commissioner of U.S. Customs and Border Protection
Defendant U.S. Customs and Border Protection

Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by P. Angel Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by P. Angel Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address)

Defendant L. Francis Cissna in his official capacity as Director of U.S. Citizenship and Immigration Services
Defendant U.S. Citizenship and Immigration Services

ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by P. Angel Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by P. Angel Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
David Kim (See above for address) ATTORNEY TO BE NOTICED
Nicole Patrice Grant

(See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

03/13/20

18

1

COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971-12185016.). Filed byFarangis Emami, Behnaz Malekghaeini, Clyde Tedrick, Maryam Mozafari, Hoda Abadi, Mitra Farnoodian-Tedrick, Afrooz Kharazmi, Fathollah Beydokhti, Tannaz Toloubeydokhti, Mahdi Arjmand, Roghayeh Azizikoutenaei, Nahid Mozaffary, Behnam Babalou, Ehsan Heidaryan, Bamshad Azizi, Afshan Zadeh, Bahram Tabrizi, Soheil Vazehrad, Maral Tabrizi, Hojjatollah Azizikoutenaei, Nastaran Hajiheydari, Zahra Rouzbehani, Atefehossadat Motavaliabyazani, Najmeh Maharlouei, Farajollah Farnoudian. (Attachments: # 1 Certificate/Proof of Service, # 2 Civil Cover Sheet)(Cortes Romero, Luis) (Filed on 3/13/2018) (Entered: 03/13/2018)

03/13/20 18

3 Initial Case Management Scheduling Order with ADR Deadlines: This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras Case Management Statement due by 6/7/2018. Initial Case Management Conference set for 6/14/2018 10:00 AM. (hdjS, COURT STAFF) (Filed on 3/13/2018) (Additional attachment(s) added on 3/14/2018: # 1 Notice of Eligibility for Video Recording) (hdjS, COURT STAFF). (Entered: 03/14/2018)

03/14/20 18

2 Case assigned to Judge James Donato.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers

03/22/20 18 03/23/20 18 03/23/20 18
04/18/20 18

a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (haS, COURT STAFF) (Filed on 3/14/2018) (Entered: 03/14/2018)

4 Proposed Summons. (Cortes Romero, Luis) (Filed on 3/22/2018) (Entered: 03/22/2018)

5 Summons Issued as to Daniel Coats, Kirstjen Nielsen, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 3/23/2018) (Entered: 03/23/2018)

6 EXHIBITS re 1

Complaint,, for Declaratory and Injunctive

Relief filed byHoda Abadi, Mahdi Arjmand, Bamshad Azizi, Hojjatollah

Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah

Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah

Farnoudian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi,

Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat

Motavaliabyazani, Maryam Mozafari, Nahid Mozaffary, Zahra

Rouzbehani, Bahram Tabrizi, Maral Tabrizi, Clyde Tedrick, Tannaz

Toloubeydokhti, Soheil Vazehrad, Afshan Zadeh. (Attachments:

# 1 Exhibit EXHIBIT A, # 2 Exhibit EXHIBIT B, # 3 Exhibit EXHIBIT C,

# 4 Exhibit EXHIBIT D, # 5 Exhibit EXHIBIT E, # 6 Exhibit EXHIBIT F, # 7 Exhibit EXHIBIT G, # 8 Exhibit EXHIBIT H, # 9 Exhibit EXHIBIT I, # 10 Exhibit EXHIBIT J, # 11 Exhibit EXHIBIT K, # 12 Exhibit EXHIBIT L, # 13 Exhibit EXHIBIT M, # 14 Exhibit EXHIBIT N, # 15 Exhibit EXHIBIT O,

# 16 Exhibit EXHIBIT P)(Related document(s) 1 ) (Cortes Romero, Luis) (Filed on 3/23/2018) (Entered: 03/23/2018)

7 First MOTION for leave to appear in Pro Hac Vice for Veronica Sustic ( Filing fee $ 310, receipt number 0971-12282000.) filed by Hoda Abadi, Mahdi Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Nahid Mozaffary, Zahra Rouzbehani, Bahram Tabrizi, Maral Tabrizi, Clyde Tedrick, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Zadeh. (Attachments: # 1 Certificate of Good Standing)(Cortes Romero, Luis) (Filed on 4/18/2018) (Entered: 04/18/2018)

04/18/20 18
04/18/20 18 04/18/20 18
04/18/20 18
04/18/20 18

8 Second MOTION for leave to appear in Pro Hac Vice for Shabnam Lotfi ( Filing fee $ 310, receipt number 0971-12282042.) filed by Hoda Abadi, Mahdi Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Nahid Mozaffary, Zahra Rouzbehani, Bahram Tabrizi, Maral Tabrizi, Clyde Tedrick, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Zadeh. (Attachments: # 1 Certificate of Good Standing)(Cortes Romero, Luis) (Filed on 4/18/2018) (Entered: 04/18/2018)
9 Proposed Summons. (Cortes Romero, Luis) (Filed on 4/18/2018) (Entered: 04/18/2018)
10 First MOTION for leave to appear in Pro Hac Vice Shabnam Lotfi ( Filing fee $ 310, receipt number 0971-12284028.) filed by Hoda Abadi, Mahdi Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Nahid Mozaffary, Zahra Rouzbehani, Bahram Tabrizi, Maral Tabrizi, Clyde Tedrick, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Zadeh. (Attachments: # 1 Certificate/Proof of Service)(Rosenbaum, Mark) (Filed on 4/18/2018) (Entered: 04/18/2018)
11 First MOTION for leave to appear in Pro Hac Vice Veronica Sustic ( Filing fee $ 310, receipt number 0971-12284060.) filed by Hoda Abadi, Mahdi Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Nahid Mozaffary, Zahra Rouzbehani, Bahram Tabrizi, Maral Tabrizi, Clyde Tedrick, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Zadeh. (Attachments: # 1 Certificate/Proof of Service)(Rosenbaum, Mark) (Filed on 4/18/2018) (Entered: 04/18/2018)
12 Proposed Summons. (Rosenbaum, Mark) (Filed on 4/18/2018) Modified on 4/19/2018 (hdjS, COURT STAFF). Modified on 4/19/2018 (hdjS, COURT STAFF). (Entered: 04/18/2018)

04/19/20 18 04/19/20 18 04/19/20 18 04/19/20 18
04/19/20 18 04/20/20 18 04/20/20 18
05/09/20 18 06/04/20 18

13 ORDER by Judge James Donato terminating 11 Motion for Pro Hac Vice; granting 7 Motion for Pro Hac Vice as to Veronica Sustic. (lrcS, COURT STAFF) (Filed on 4/19/2018) (Entered: 04/19/2018)
14 ORDER by Judge James Donato granting 10 Motion for Pro Hac Vice as to Shabnam Lotfi; terminating 8 Motion for Pro Hac Vice. (lrcS, COURT STAFF) (Filed on 4/19/2018) (Entered: 04/19/2018)
15 Summons Issued as to Alex Tse (hdjS, COURT STAFF) (Filed on 4/19/2018) (Entered: 04/19/2018)
16 Summons Returned Unexecuted against Alex Tse by Bamshad Azizi, Clyde Tedrick, Ehsan Heidaryan, Najmeh Maharlouei, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Tannaz Toloubeydokhti, Maryam Mozafari, Nahid Mozaffary, Farajollah Farnoudian, Mahdi Arjmand, Roghayeh Azizikoutenaei, Bahram Tabrizi, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Soheil Vazehrad, Hoda Abadi, Nastaran Hajiheydari, Zahra Rouzbehani, Afshan Zadeh, Hojjatollah Azizikoutenaei, Maral Tabrizi, Afrooz Kharazmi, Behnam Babalou as to All Parties. (Lotfi, Shabnam) (Filed on 4/19/2018) Modified on 4/19/2018 (hdjS, COURT STAFF). (Entered: 04/19/2018)
17 Proposed Summons. (Lotfi, Shabnam) (Filed on 4/19/2018) (Entered: 04/19/2018)
18 Summons Issued as to Alex Tse, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)
19 SUMMONS Returned Executed by Bamshad Azizi, Clyde Tedrick, Ehsan Heidaryan, Najmeh Maharlouei, Fathollah Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Tannaz Toloubeydokhti, Maryam Mozafari, Nahid Mozaffary, Farajollah Farnoudian, Mahdi Arjmand, Roghayeh Azizikoutenaei, Bahram Tabrizi, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Soheil Vazehrad, Hoda Abadi, Nastaran Hajiheydari, Zahra Rouzbehani, Afshan Zadeh, Hojjatollah Azizikoutenaei, Maral Tabrizi, Afrooz Kharazmi, Behnam Babalou. All Defendants. Shabnam Lotfi (Lotfi, Shabnam) (Filed on 4/20/2018) (Entered: 04/20/2018)
20 NOTICE of Appearance by Stacey Ilene Young (Young, Stacey) (Filed on 5/9/2018) (Entered: 05/09/2018)
21 ADR Clerk's Notice re: Non-Compliance with Court Order (ewh, COURT STAFF) (Filed on 6/4/2018) (Entered: 06/04/2018)

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22 First MOTION to Continue INITIAL CASE MANAGEMENT CONFERENCE filed by Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nahid Golestanian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Alamshah Zadeh. (Attachments: # 1 Proposed Order, # 2 Declaration, # 3 Certificate/Proof of Service)(Sustic, Veronica) (Filed on 6/7/2018) (Entered: 06/07/2018)

23 ORDER. At the parties' joint request, Dkt. No. 22 , the initial case management conference is continued to 7/26/2018 10:00 AM in San Francisco, Courtroom 11, 19th Floor. Case management statement due by 7/19/2018. Signed by Judge James Donato on 6/11/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 6/11/2018) (Entered: 06/11/2018)

24 STIPULATION WITH PROPOSED ORDER filed by Daniel Coats, Kirstjen Nielsen, Office of the Director of National Intelligence, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Declaration)(Young, Stacey) (Filed on 6/22/2018) (Entered: 06/22/2018)

25 ORDER. The parties' jointly proposed deadline at 24

is fine.

Signed by Judge James Donato on 6/25/2018. (This is a text-only

entry generated by the court. There is no document associated with

this entry.) (jdlc3S, COURT STAFF) (Filed on 6/25/2018) (Entered:

06/25/2018)

26 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12489330.) filed by Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nahid Golestanian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz

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Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Certificate of good standing)(Shebaya, Sirine) (Filed on 7/5/2018) (Entered: 07/05/2018)
27 ORDER by Judge James Donato granting 26 Motion for Pro Hac Vice as to Sirine Shebaya. (lrcS, COURT STAFF) (Filed on 7/9/2018) (Entered: 07/09/2018)
28 Letter from All Parties (joint) providing notice of intent to file an amended complaint and seeking continuance of scheduled status conference and other dates. (Shebaya, Sirine) (Filed on 7/11/2018) (Entered: 07/11/2018)
29 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12505876.) filed by Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nahid Golestanian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Certificate of good standing)(Smith, Johnathan) (Filed on 7/12/2018) (Entered: 07/12/2018)
30 ORDER by Judge James Donato granting 29 Motion for Pro Hac Vice as to Johnathan James Smith. (lrcS, COURT STAFF) (Filed on 7/13/2018) (Entered: 07/13/2018)
31 NOTICE of Appearance by P. Angel Martinez (Martinez, P.) (Filed on 7/18/2018) (Entered: 07/18/2018)
32 STIPULATION WITH PROPOSED ORDER to Modify Deadlines filed by Daniel Coats, Kirstjen Nielsen, Office of the Director of National Intelligence, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 7/19/2018) (Entered: 07/19/2018)

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33 ORDER. The jointly proposed deadlines at 32 are fine. The initial case management conference is continued to 9/20/2018 10:00 AM in San Francisco, Courtroom 11, 19th Floor. Case management statement due by 9/13/2018. Signed by Judge James Donato on 7/23/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 7/23/2018) (Entered: 07/23/2018)
34 AMENDED COMPLAINT FIRST against All Defendants. Filed byEhsan Heidaryan, Fathollah Beydokhti, Farangis Emami, Mitra FarnoodianTedrick, Farajollah Farnoudian, Mahdi Afshar Arjmand, Roghayeh Azizikoutenaei, Clyde Jean Tedrick, II, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Behnam Babalou, Bamshad Azizi, Fathollah Tolou Beydokhti, Najmeh Maharlouei, Maryam Mozafari, Tannaz Toloubeydokhti, Nahid Golestanian, Bahram Charkhtab Tabrizi, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Soheil Vazehrad, Nastaran Hajiheydari, Hoda Mehrabi Mohammed Abadi, Hojjatollah Azizikoutenaei, Afshan Alamshah Zadeh, Afrooz Kharazmi, Maral Charkhtab Tabrizi. (Attachments: # 1 Affidavit Declaration of counsel, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12 Exhibit Exhibit K, # 13 Exhibit Exhibit L, # 14 Exhibit Exhibit M, # 15 Exhibit Exhibit N)(Shebaya, Sirine) (Filed on 7/29/2018) (Entered: 07/29/2018)
35 STIPULATION WITH PROPOSED ORDER FOR DEADLINES TO ANSWER OR OTHERWISE RESPOND AND FOR CONTINUING THE CASE MANAGEMENT STATEMENT filed by Daniel Coats, Kirstjen Nielsen, Office of the Director of National Intelligence, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 8/4/2018) (Entered: 08/04/2018)
36 ORDER re 35 . The parties' jointly proposed deadlines are fine. Signed by Judge James Donato on 8/6/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 8/6/2018) (Entered: 08/06/2018)
37 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) (Filed on 8/20/2018) (Entered: 08/20/2018)

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38 NOTICE of Change In Counsel by Mark Dale Rosenbaum (Rosenbaum, Mark) (Filed on 8/23/2018) (Entered: 08/23/2018)
39 ADR Clerk's Notice re: Non-Compliance with Court Order (ewh, COURT STAFF) (Filed on 9/10/2018) (Entered: 09/10/2018)
40 Joint ADMINISTRATIVE MOTION TO EXCEED BRIEFING PAGE LIMIT on Defendants' Intended Dispositive Motion filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. Responses due by 9/14/2018. (Martinez, P.) (Filed on 9/10/2018) (Entered: 09/10/2018)
41 ORDER. The parties' stipulated request to exceed briefing page limits is denied. Signed by Judge James Donato on 9/12/2018. (This is a text-only entry. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 9/12/2018) (Entered: 09/12/2018)
42 MOTION to Dismiss FOR FAILURE TO STATE A CLAIM filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. Motion Hearing set for 11/1/2018 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Responses due by 9/26/2018. Replies due by 10/3/2018. (Attachments: # 1 Proposed Order)(Martinez, P.) (Filed on 9/12/2018) (Entered: 09/12/2018)
43 STIPULATION WITH PROPOSED ORDER TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Martinez, P.) (Filed on 9/13/2018) (Entered: 09/13/2018)
44 Proposed Summons. (Shebaya, Sirine) (Filed on 9/14/2018) (Entered: 09/14/2018)

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45 CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT filed by Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nahid Golestanian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Alamshah Zadeh. (Shebaya, Sirine) (Filed on 9/15/2018) (Entered: 09/15/2018)
46 STIPULATION WITH PROPOSED ORDER to extend deadlines to file response and reply to Defendants' motion to dismiss and to continue hearing filed by Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Beydokhti, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Nahid Golestanian, Nastaran Hajiheydari, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammand Mehdi Mozaffary, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Afshan Alamshah Zadeh. (Attachments: # 1 Declaration Declaration in support of Stipulation and Proposed Order)(Shebaya, Sirine) (Filed on 9/17/2018) (Entered: 09/17/2018)
47 Summons Issued as to L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State. (hdjS, COURT STAFF) (Filed on 9/17/2018) (Entered: 09/17/2018)
48 ORDER. At the parties' request, the deadline for plaintiffs to oppose the motion to dismiss is extended to October 12, 2018, and the deadline for defendants to reply is extended to October 26, 2018. The hearing on the motion to dismiss and initial case management conference are continued to November 15, 2018. Signed by Judge James Donato on 9/17/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 9/17/2018) (Entered: 09/17/2018)

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49 NOTICE of Appearance by Joseph E Saei (Saei, Joseph) (Filed on 9/19/2018) (Entered: 09/19/2018)
50 SUMMONS Returned Executed by Ehsan Heidaryan, Farangis Emami, Abdurraouf Gseaa, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Mahdi Afshar Arjmand, Roghayeh Azizikoutenaei, Clyde Jean Tedrick, II, Hezam Alarqaban, Khadija Aden, Mohammad Mehdi Mozaffary, Zahra Rouzbehani, Behnam Babalou, Khalil Ali Nagi, Bamshad Azizi, Fathollah Tolou Beydokhti, Najmeh Maharlouei, Sudi Wardere, Nastaran Hajiheydari, Ismail Alghazali, Maryam Mozafari, Tannaz Toloubeydokhti, Aziz Altuhaif, Bahram Charkhtab Tabrizi, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Soheil Vazehrad, Hoda Mehrabi Mohammed Abadi, Mohamad Hamami, Afshan Alamshah Zadeh, Hojjatollah Azizikoutenaei, Afrooz Kharazmi, Maral Charkhtab Tabrizi. L. Francis Cissna served on 9/18/2018, answer due 10/9/2018; Kevin K. McAleenan served on 9/19/2018, answer due 10/10/2018; U.S. Citizenship and Immigration Services served on 9/18/2018, answer due 10/9/2018; U.S. Customs and Border Protection served on 9/19/2018, answer due 10/10/2018. (Shebaya, Sirine) (Filed on 9/19/2018) (Entered: 09/19/2018)
51 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12700017.) filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Certificate of good standing)(Azmi, Nimra) (Filed on 9/21/2018) (Entered: 09/21/2018)
52 STIPULATION WITH PROPOSED ORDER TO CONTINUE THE HEARING ON DEFENDANTS MOTION TO DISMISS AND THE INITIAL CASE MANAGEMENT CONFERENCE filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State.

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(Attachments: # 1 Declaration of P. Angel Martinez)(Martinez, P.) (Filed on 9/25/2018) (Entered: 09/25/2018)

53 ORDER. At the parties' request, Dkt. No. 52 , the hearing on the motion to dismiss and the initial case management conference are continued to December 13, 2018. Signed by Judge James Donato on 9/27/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc3S, COURT STAFF) (Filed on 9/27/2018) (Entered: 09/27/2018)

54 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options for Defendants (Martinez, P.) (Filed on 10/10/2018) (Entered: 10/10/2018)

55 STIPULATION WITH PROPOSED ORDER To Opt Out of ADR filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State. (Martinez, P.) (Filed on 10/10/2018) (Entered: 10/10/2018)

56 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options for Plaintiffs (Shebaya, Sirine) (Filed on 10/10/2018) (Entered: 10/10/2018)

57 OPPOSITION/RESPONSE (re 42

MOTION to Dismiss FOR FAILURE

TO STATE A CLAIM ) filed byHoda Mehrabi Mohammed Abadi, Khadija

Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali

Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi,

Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou,

Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick,

Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari,

Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh

Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani,

Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra

Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde

Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi

Wardere, Afshan Alamshah Zadeh. (Shebaya, Sirine) (Filed on

10/12/2018) (Entered: 10/12/2018)

58 REPLY (re 42 MOTION to Dismiss FOR FAILURE TO STATE A
CLAIM ) filed byL. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen,
Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S.

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Customs and Border Protection, US Department of Homeland Security, US Department of State. (Martinez, P.) (Filed on 10/26/2018) (Entered: 10/26/2018)

59 ERRATA re 58

Reply to Opposition/Response, by L. Francis Cissna,

Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S.

Citizenship and Immigration Services, U.S. Customs and Border

Protection, US Department of Homeland Security, US Department of

State. (Martinez, P.) (Filed on 11/7/2018) (Entered: 11/07/2018)

60 Order by Judge James Donato granting 55 Joint Motion for Relief from Automatic Referral to ADR Multi-Option Program. As jointly requested by the parties, the Court orders this case excepted from the ADR Multi-Option Program. (This is a text-only entry. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)

61 STIPULATION WITH PROPOSED ORDER TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State. (Martinez, P.) (Filed on 12/7/2018) (Entered: 12/07/2018)

62 NOTICE of Appearance by August Flentje (Flentje, August) (Filed on 12/9/2018) (Entered: 12/09/2018)

63 ORDER RE 61 STIPULATION WITH PROPOSED ORDER TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE. The Court vacates the initial case management conference pending further order. Signed by Judge James Donato on 12/10/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)

64 NOTICE by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam

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Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh Notice of supplemental authority (Shebaya, Sirine) (Filed on 12/11/2018) (Entered: 12/11/2018)
65 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byL. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Exhibit)(Young, Stacey) (Filed on 12/12/2018) (Entered: 12/12/2018)
66 Minute Entry for proceedings held before Judge James Donato: Motion Hearing held on 12/13/2018. (jdlc2S, COURT STAFF) (Date Filed: 12/17/2018) (Entered: 12/17/2018)
67 TRANSCRIPT ORDER for proceedings held on 12/13/18 before Judge James Donato by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh, for Court Reporter Marla Knox. (Shebaya, Sirine) (Filed on 12/19/2018) (Entered: 12/19/2018)
68 Transcript of Proceedings held on December 13, 2018, before Judge James J. Donato. Court Reporter, Marla F. Knox, telephone number (602) 391-6990. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date

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of this filing. Release of Transcript Restriction set for 4/2/2019. (mfk, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
69 NOTICE by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh Notice of Related Case Pursuant to LR 3-12; Unopposed Administrative Motion to Consider Whether Cases
Should Be Related (Attachments: # 1 Exhibit J. Robart Transfer Order)(Shebaya, Sirine) (Filed on 1/8/2019) (Entered: 01/08/2019)
Electronic filing error. Incorrect event used. [err101]Please re-file in its
entirety. Re: 69 Notice (Other),,, filed by Fathollah Tolou Beydokhti, Ismail Alghazali, Bamshad Azizi, Hojjatollah Azizikoutenaei, Maral Charkhtab Tabrizi, Soheil Vazehrad, Hoda Mehrabi Mohammed Abadi, Mahdi Afshar Arjmand, Nastaran Hajiheydari, Afrooz Kharazmi, Afshan Alamshah Zadeh, Khalil Ali Nagi, Khadija Aden, Mitra Farnoodian-Tedrick, Behnam Babalou, Mohammad Mehdi Mozaffary, Malik Almathil, Tannaz Toloubeydokhti, Roghayeh Azizikoutenaei, Aziz Altuhaif, Clyde Jean Tedrick, II, Ehsan Heidaryan, Farajollah Farnoudian, Bahram Charkhtab Tabrizi, Behnaz Malekghaeini, Najib Adi, Atefehossadat Motavaliabyazani, Ali Altuhaif, Abdurraouf Gseaa, Mohamad Hamami, Farangis Emami, Zahra Rouzbehani, Najmeh Maharlouei, Maryam Mozafari, Hezam Alarqaban, Sudi Wardere (hdjS, COURT STAFF) (Filed on 1/9/2019) (Entered: 01/09/2019)
70 Consent ADMINISTRATIVE MOTION Relating cases and Notice of Related Cases filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh

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Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. Responses due by 1/14/2019. (Attachments: # 1 Exhibit Judge Robart Transfer Order)(Shebaya, Sirine) (Filed on 1/9/2019) (Entered: 01/09/2019)

71 ORDER by Judge James Donato granting 70 Administrative Motion to relate C-18-7818-JSC. (lrcS, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)

72 ORDER by Judge James Donato granting 51 Motion for Pro Hac Vice as to Nimra Azmi. (lrcS, COURT STAFF) (Filed on 1/30/2019) (Entered: 01/30/2019)

73 NOTICE of Change In Counsel by Johnathan James Smith (Smith, Johnathan) (Filed on 2/1/2019) (Entered: 02/01/2019)

74 ORDER RE 42

MOTION TO DISMISS. Amended complaint due by

2/25/2019. Signed by Judge James Donato on 2/4/2019. (jdlc2S,

COURT STAFF) (Filed on 2/4/2019) (Entered: 02/04/2019)

75 AMENDED COMPLAINT Second Amended Complaint against All Defendants. Filed byEhsan Heidaryan, Farangis Emami, Abdurraouf Gseaa, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Mahdi Afshar Arjmand, Roghayeh Azizikoutenaei, Clyde Jean Tedrick, II, Najib Adi, Hezam Alarqaban, Khadija Aden, Mohammad Mehdi Mozaffary, Zahra Rouzbehani, Behnam Babalou, Khalil Ali Nagi, Bamshad Azizi, Fathollah Tolou Beydokhti, Ali Altuhaif, Najmeh Maharlouei, Sudi Wardere, Malik Almathil, Ismail Alghazali, Maryam Mozafari, Tannaz Toloubeydokhti, Aziz Altuhaif, Bahram Charkhtab Tabrizi, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Soheil Vazehrad, Nastaran Hajiheydari, Hoda Mehrabi Mohammed Abadi, Mohamad Hamami, Afshan Alamshah Zadeh, Hojjatollah Azizikoutenaei, Afrooz Kharazmi, Maral Charkhtab Tabrizi. (Shebaya, Sirine) (Filed on 2/23/2019) (Entered: 02/23/2019)

76 MOTION to Consolidate Cases filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State. Motion Hearing set for 4/11/2019 10:00 AM in San Francisco, Courtroom 11,

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19th Floor before Judge James Donato. Responses due by 3/12/2019.

Replies due by 3/19/2019. (Attachments: # 1 Proposed Order)(Martinez, P.) (Filed on 2/26/2019) (Entered: 02/26/2019)

77 EXHIBITS re 75

Amended Complaint,,, filed byHoda Mehrabi

Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail

Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar

Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh

Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis

Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf

Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan,

Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini,

Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad

Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab

Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz

Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah

Zadeh. (Attachments: # 1 Exhibit Decl. of Counsel, # 2 Exhibit

A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6

Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H,

# 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13

Exhibit L, # 14 Exhibit M, # 15 Exhibit N)(Related

document(s) 75 02/26/2019)

) (Shebaya, Sirine) (Filed on 2/26/2019) (Entered:

78 STIPULATION WITH PROPOSED ORDER FOR DEADLINE TO ANSWER OR OTHERWISE RESPOND TO THE SECOND AMENDED COMPLAINT filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US

Department of State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 3/4/2019) (Entered: 03/04/2019)

79 OPPOSITION/RESPONSE (re 76 MOTION to Consolidate
Cases ) filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib
Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif,

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Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Shebaya, Sirine) (Filed on 3/11/2019) (Entered: 03/11/2019)

80 REPLY (re 76

MOTION to Consolidate Cases ) filed byL. Francis

Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Michael R.

Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and

Border Protection, US Department of Homeland Security, US

Department of State. (Martinez, P.) (Filed on 3/15/2019) (Entered:

03/15/2019)

81 ERRATA re 75

Amended Complaint,,, by Hoda Mehrabi

Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail

Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar

Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh

Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis

Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf

Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan,

Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini,

Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad

Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab

Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz

Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah

Zadeh. (Attachments: # 1 Corrected Second Amended Complaint)(Shebaya, Sirine) (Filed on 4/10/2019) (Entered: 04/10/2019)

82 Minute Entry for proceedings held before Judge James Donato: Motion Hearing and Initial Case Management Conference held on 4/11/2019. Proposed case schedule due by 4/18/2019. Defendants' complaint responses due by 5/13/2019. (jdlc2S, COURT STAFF) (Date Filed: 4/15/2019) (Entered: 04/15/2019)

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83 STIPULATION WITH PROPOSED ORDER Regarding Case Management Schedule filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Shebaya, Sirine) (Entered: 04/18/2019)
84 Transcript of Proceedings held on 4/11/19, before Judge James Donato. Court Reporter Jo Ann Bryce, telephone number 510-9105888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (100 in 3:18-cv-07818-JD) Transcript Order, ) Release of Transcript Restriction set for 7/22/2019. (jabS, COURTSTAFF) (Filed on 4/22/2019) (Entered: 04/22/2019)
85 STIPULATION WITH PROPOSED ORDER TO EXTEND TIME TO FILE RESPONSE TO SECOND AMENDED COMPLAINT filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of
State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 5/7/2019) (Entered: 05/07/2019)
86 ORDER. The Court grants the parties' stipulated requests (Dkt. No. 85 in Case No. 18-1587 & Dkt. No. 104 in Case No. 18-7818) and extends defendants' complaint response deadline in both cases to May 28, 2019. Signed by Judge James Donato on 5/9/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 5/9/2019) (Entered: 05/09/2019)

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87 MOTION for Extension of Time to File PRODUCE ADMINISTRATIVE RECORD filed by L. Francis Cissna, Kevin K. McAleenan, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US
Department of State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 5/13/2019) (Entered: 05/13/2019)
88 ORDER. The Court grants the federal defendants' unopposed motions for an extension of time. The deadline by which defendants must produce the administrative record is continued to May 15, 2019. Signed by Judge James Donato on 5/13/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 5/13/2019) (Entered: 05/13/2019)
89 Second MOTION for Extension of Time to File Answer re 75
Amended Complaint,,, filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State.
(Attachments: # 1 Declaration IN SUPPORT OF MOTION TO EXTEND TIME TO RESPOND TO THE COMPLAINT)(Young, Stacey) (Filed on 5/28/2019) (Entered: 05/28/2019)
90 Discovery Letter Brief to Compel Completion of the Administrative Record filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah
Zadeh. (Attachments: # 1 Exhibit A)(Shebaya, Sirine) (Filed on 5/29/2019) (Entered: 05/29/2019)

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91 NOTICE of Appearance by David Kim (Kim, David) (Filed on 5/29/2019) (Entered: 05/29/2019)

92 OPPOSITION/RESPONSE (re 89

Second MOTION for Extension of

Time to File Answer re 75 Amended Complaint,,, ) filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere. (Shebaya, Sirine) (Filed on 5/29/2019) (Entered: 05/29/2019)

93 ORDER re (89 in 3:18-cv-01587-JD) Second Motion for Extension of Time to File Answer. The parties are advised that extension requests filed on the day of the deadline will be summarily denied going forward. Defendants may respond on or before June 18, 2019, to the complaints. No further extensions will be granted. Signed by Judge James Donato on 5/30/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 5/30/2019) (Entered: 05/30/2019)

94 ORDER re Discovery Letter Brief, Dkt. No. 90 in 3:18-cv-01587-JD & Dkt. No. 111 in 3:18-cv-07818-JD. The Court calls for a response from defendants by June 10, 2019, following the same letter brief format as described in the Court's civil discovery standing order. Signed by Judge James Donato on 6/3/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 6/3/2019) (Entered: 06/03/2019)

95 NOTICE by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US

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Department of Justice, US Department of State re 93 Order,,, Terminate Motions,, of Public Release of State Department Report on Waiver Statistics (Kim, David) (Filed on 6/7/2019) (Entered: 06/07/2019)
96 Discovery Letter BriefResponding to Plaintiffs' Request to Compel Completion of Administrative Record filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Kim, David) (Filed on 6/10/2019) (Entered: 06/10/2019)
97 ORDER re (90 in 3:18-cv-01587-JD), (111 in 3:18-cv-07818-JD) Discovery Letter Brief to Compel Completion of the Administrative Record. The Court sets a discovery hearing and status conference for 7/11/2019 at 10:00 AM in San Francisco, Courtroom 11, 19th Floor. The parties should be prepared to discuss the appropriate scope of discovery for plaintiffs' Accardi claim. Signed by Judge James Donato on 6/11/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 6/11/2019) (Entered: 06/11/2019)
98 MOTION to Dismiss , MOTION for Summary Judgment filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. Motion Hearing set for 7/25/2019 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Responses due by 6/27/2019. Replies due by 7/5/2019. (Attachments: # 1 Administrative Record)(Kim, David) (Entered: 06/13/2019)
99 Discovery Letter BriefRequesting Stay of Discovery Deadlines Pending the Court's Scheduled July 11 Discovery Hearing filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of

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Justice, US Department of State. (Kim, David) (Filed on 6/17/2019) (Entered: 06/17/2019)

100 ***ERRONEOUS DOCKET ENTRY*** (Yousefzadeh, Babak) (Filed on 6/17/2019) Modified on 6/18/2019 (hdjS, COURT STAFF). (Entered: 06/17/2019)

101 Discovery Letter Brief to Compel Compliance with Plaintiffs' Class Certification Discovery Requests filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shebaya, Sirine) (Filed on 6/17/2019) (Entered: 06/17/2019)

102 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Discovery Hearing continued to 7/25/2019 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Status Conference continued to 7/25/2019 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. (lrcS, COURT STAFF) (Filed on 6/18/2019) (Entered: 06/18/2019)

103 ORDER re (99 in 3:18-cv-01587-JD) Discovery Letter Brief, (101 in 3:18-cv-01587-JD) Discovery Letter Brief. The Court will take up these newly-filed discovery dispute letters at the hearing on July 25, 2019. Signed by Judge James Donato on 6/21/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 6/21/2019) (Entered: 06/21/2019)

104 OPPOSITION/RESPONSE (re 98

MOTION to Dismiss MOTION for

Summary Judgment ) filed byHoda Mehrabi Mohammed Abadi, Khadija

Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil,

Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei,

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Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan

Alamshah Zadeh. (Attachments: # 1 Declaration of Sirine Shebaya,

# 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit

4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9

Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12

Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25)(Shebaya, Sirine) (Filed on 6/27/2019) (Entered: 06/27/2019)

105 MOTION for Extension of Time to File Response/Reply as to 98

MOTION to Dismiss MOTION for Summary Judgment filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US

Department of State. (Attachments: # 1 Declaration)(Martinez, P.) (Filed on 7/2/2019) (Entered: 07/02/2019)

106 OPPOSITION/RESPONSE (re 105

MOTION for Extension of Time to

File Response/Reply as to 98 MOTION to Dismiss MOTION for Summary Judgment ) filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani,

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Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Shebaya, Sirine) (Filed on 7/2/2019) (Entered: 07/02/2019)

107 REPLY (re 98

MOTION to Dismiss MOTION for Summary

Judgment ) filed byL. Francis Cissna, Daniel Coats, Kevin K. McAleenan,

Kirstjen Nielsen, Office of the Director of National Intelligence, Michael

R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump,

Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and

Border Protection, US Department of Homeland Security, US

Department of Justice, US Department of State. (Martinez, P.) (Filed on

7/5/2019) (Entered: 07/05/2019)

108 Notice of Withdrawal of Motion to Extend Time to File a Reply in Support of Defendants' Motion to Dismiss or for Summary Judgment (Martinez, P.) (Filed on 7/8/2019) (Entered: 07/08/2019)

109 NOTICE by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi

Wardere, Afshan Alamshah Zadeh re 104 Opposition/Response to Motion,,,,, NOTICE OF SUPPLEMENTAL AUTHORITY (Shebaya, Sirine) (Filed on 7/11/2019) (Entered: 07/11/2019)

110 Letter from Defendants in Response to Plaintiffs' Notice of Supplemental Authority . (Kim, David) (Filed on 7/18/2019) (Entered: 07/18/2019)

111 NOTICE of Change In Counsel by Joseph E Saei (Saei, Joseph) (Filed on 7/22/2019) (Entered: 07/22/2019)

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112 Letter from Defendants Advising Court of Recent Waiver Grants . (Kim, David) (Filed on 7/22/2019) (Entered: 07/22/2019)

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113 Minute Entry for proceedings held before Judge James Donato: Discovery Hearing and Status Conference held on 7/25/2019. Further Discovery Hearing set for 9/12/2019 at 2:00 p.m. (jdlc2S, COURT STAFF) (Date Filed: 7/29/2019) (Entered: 07/29/2019)
114 STIPULATION WITH PROPOSED ORDER Regarding Consolidation of Cases filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Asimow, Daniel) (Filed on 7/30/2019) (Entered: 07/30/2019)
115 Transcript of Proceedings held on July 25, 2019, before Judge James Donato. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (134 in 3:18-cv-07818-JD) Transcript Order, (135 in 3:18-cv-07818-JD) Transcript Order, ) Release of Transcript Restriction set for 10/30/2019. (ballbb15S, COURT STAFF) (Filed on 8/1/2019) (Entered: 08/01/2019)
116 NOTICE of Change In Counsel by Sirine Shebaya (Shebaya, Sirine) (Filed on 8/16/2019) (Entered: 08/16/2019)
117 STATUS REPORT Joint Discovery Report by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei,

09/05/20 19
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Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Freedman, John) (Filed on 9/5/2019) (Entered: 09/05/2019)

118 Declaration of Esther H. Sung in Support of 117

Status

Report,,, filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib

Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif,

Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah

Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah

Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah

Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad

Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei,

Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam

Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra

Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde

Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi

Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit A,

# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit

F)(Related document(s) 117 ) (Freedman, John) (Filed on 9/5/2019) (Entered: 09/05/2019)

119 NOTICE by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security,

US Department of State re 98 MOTION to Dismiss MOTION for Summary Judgment UPDATED GUIDANCE DOCUMENTS IN ADMINISTRATIVE RECORD (Attachments: # 1 Exhibit A - Updated Guidance Documents in Administrative Record)(Kim, David) (Filed on 9/6/2019) (Entered: 09/06/2019)

120 ORDER. The Court's review of the joint discovery report demonstrates that the issues are suitable for a written order without a hearing. Consequently, the hearing set for September 12, 2019, is vacated. A discovery order will be filed. Signed by Judge James Donato on 09/11/2019. (This is a text-only entry generated by the

09/12/20 19
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court. There is no document associated with this entry.) (Donato, James) (Filed on 9/11/2019) (Entered: 09/11/2019)
121 NOTICE of Appearance by Eric Evans for Plaintiffs (Evans, Eric) (Filed on 9/12/2019) (Entered: 09/12/2019)
122 ORDER RE DISCOVERY. Signed by Judge James Donato on 9/12/2019. (jdlc2S, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)

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123 Letter from Defendants Providing Status Update on Plaintiffs' Waiver Claims . (Kim, David) (Filed on 9/19/2019) (Entered: 09/19/2019)
124 NOTICE by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State (Attachments: # 1 June 2019 State Dep't Report on Waiver Process)(Kim, David) (Filed on 9/27/2019) (Entered: 09/27/2019)
125 NOTICE by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi
Wardere, Afshan Alamshah Zadeh re 104 Opposition/Response to Motion,,,,, Notice of Supplemental Authority in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss etc. (Attachments: # 1 Memorandum Opinion)(Asimow, Daniel) (Filed on 9/27/2019) (Entered: 09/27/2019)
126 MOTION to Withdraw PLAINTIFFS SOHEIL VAZEHRAD AND ATEFEHOSSADAT MOTAVALIABYAZANI filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar

10/10/20 19
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Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. Motion Hearing set for 11/21/2019 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Responses due by 10/23/2019. Replies due by 10/30/2019. (Attachments:

# 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Azmi, Nimra) (Filed on 10/9/2019) (Entered: 10/09/2019)

127 RESPONSE re 125 Notice (Other),,, by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Kim, David) (Filed on 10/10/2019) (Entered: 10/10/2019)

128 NOTICE by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of State of Supplemental Authority (Attachments: # 1 Exhibit Yavari et al v. Pompeo et al (CD. Cal.): Order Granting Defendants' Motion to Dismiss)(Martinez, P.) (Filed on 10/22/2019) (Entered: 10/22/2019)

129 OPPOSITION/RESPONSE (re 126

MOTION to Withdraw PLAINTIFFS

SOHEIL VAZEHRAD AND ATEFEHOSSADAT MOTAVALIABYAZANI ) filed

byL. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen,

Office of the Director of National Intelligence, Michael R. Pompeo,

Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse,

U.S. Citizenship and Immigration Services, U.S. Customs and Border

Protection, US Department of Homeland Security, US Department of

Justice, US Department of State. (Attachments: # 1 Attachment)(Kim,

David) (Filed on 10/23/2019) (Entered: 10/23/2019)

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130 RESPONSE re 128 Notice (Other), Plaintiffs' Response to Defendants' Notice of Supplemental Authority by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Freedman, John) (Filed on 10/29/2019) (Entered: 10/29/2019)
131 NOTICE by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security,
US Department of State re 98 MOTION to Dismiss MOTION for Summary Judgment of Updated Records Declaration in Administrative Record (Attachments: # 1 Exhibit Updated Records Declaration)(Martinez, P.) (Filed on 10/30/2019) (Entered: 10/30/2019)
132 NOTICE of Voluntary Dismissal of Plaintiffs Soheil Vazehrad and Atefehossadat Motavaliabyazani's Claims by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh (Attachments: # 1 Proposed Order)(Azmi, Nimra) (Filed on 10/30/2019) (Entered: 10/30/2019)
133 Discovery Letter Brief on Behalf of Emami and Pars Plaintiffs filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei,

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Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Freedman, John) (Filed on 11/8/2019) (Entered: 11/08/2019)

134 ORDER re 133

Discovery Letter Brief. The Court calls for a

response from defendants by November 25, 2019, following the same

letter brief format as described in the Court's civil discovery standing

order. Signed by Judge James Donato on 11/18/2019. (This is a text-

only entry generated by the court. There is no document associated

with this entry.) (jdlc2S, COURT STAFF) (Filed on 11/18/2019)

(Entered: 11/18/2019)

135 Discovery Letter Briefin Response to Plaintiffs' November 8, 2019 Discovery Dispute Letter filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Declaration)(Kim, David) (Filed on 11/25/2019) (Entered: 11/25/2019)

136 Discovery Letter Brief on Behalf of Emami and Pars Plaintiffs filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Freedman, John) (Filed on 12/2/2019) (Entered: 12/02/2019)

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137 ORDER re 132

Notice of Voluntary Dismissal. Pursuant to Rule

41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, a stipulation of

dismissal signed by all parties who have appeared is self-effectuating,

and so there will be no court order adopting the stipulation. Signed

by Judge James Donato on 12/4/2019. (This is a text-only entry

generated by the court. There is no document associated with this

entry.) (jdlc2S, COURT STAFF) (Filed on 12/4/2019) (Entered:

12/04/2019)

138 ORDER. For plaintiffs' discovery dispute letter filed at Dkt. No. 136

, the Court calls for a response from defendants by December 30, 2019. The Court will take up both of the pending discovery dispute letters, Dkt. Nos. 133 & 136, in a telephonic discovery hearing on January 2, 2020, at 3:00 PM. The parties are directed to contact CourtCall at 866-582-6878 by December 31, 2019, to schedule their appearances. Signed by Judge James Donato on 12/20/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 12/20/2019) (Entered: 12/20/2019)

139 MOTION to Continue January 2, 2020 Telephonic Discovery Hearing filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Proposed Order)(Kim, David) (Filed on 12/26/2019) (Entered: 12/26/2019)

140 ORDER granting 139 Motion to Continue. At the defendants' unopposed request, the telephonic discovery hearing that was previously set for January 2, 2020, is re-set for January 14, 2020, at 1:30 p.m. The parties are directed to contact CourtCall at 866-5826878 by January 13, 2020, to schedule their appearances. Signed by Judge James Donato on 12/26/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 12/26/2019) (Entered: 12/26/2019)

141 Discovery Letter Brief in Response to Plaintiffs' December 2, 2019 Discovery Letter filed by L. Francis Cissna, Daniel Coats, Kevin K.

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McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State.
(Attachments: # 1 Exhibit Ex A - Declaration, # 2 Exhibit Ex B Privilege logs)(Martinez, P.) (Filed on 12/30/2019) (Entered: 12/30/2019)
142 Letter from Defendants Regarding Unopposed Motion to Continue Jan. 2, 2019 Telephonic Hearing . (Kim, David) (Filed on 1/3/2020) (Entered: 01/03/2020)
146 Minute Entry for proceedings held before Judge James Donato: Telephone Conference held on 1/14/2020. (jdlc2S, COURT STAFF) (Date Filed: 1/14/2020) (Entered: 01/16/2020)
143 Letter from Defendants to Provide Court with Copy of Previously Referenced Alharbi Order . (Attachments: # 1 Attachment)(Kim, David) (Filed on 1/15/2020) (Entered: 01/15/2020)
144 NOTICE of Submission of Documents for In Camera Review by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State (Kim, David) (Filed on 1/16/2020) Modified on 1/16/2020 (gbaS, COURT STAFF). (Entered: 01/16/2020)
145 Letter from Defendants Providing Status Update on Plaintiffs' Waiver Claims (Jan. 16, 2020) . (Kim, David) (Filed on 1/16/2020) (Entered: 01/16/2020)
147 Discovery Letter Brief filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary,

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Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Exhibit A (Depo. Tr. of Joel Nantais))(Evans, Eric) (Filed on 3/16/2020) (Entered: 03/16/2020)
148 Letter from Defendants Providing Status Update on Plaintiffs' waiver applications. (Martinez, P.) (Filed on 3/18/2020) (Entered: 03/18/2020)

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149 ORDER re 147 Discovery Letter Brief. The Court calls for a response from defendants by April 23, 2020. Signed by Judge James Donato on 4/16/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 4/16/2020) (Entered: 04/16/2020)
150 Letter from Defendants in Response to Plaintiffs' Letter Requesting Additional Questioning of Joel Nantais . (Attachments: # 1 Exhibit Joel Nantais Deposition Transcript)(Kim, David) (Filed on 4/21/2020) (Entered: 04/21/2020)
151 Discovery Letter Brief filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Exhibit A Emami and Pars Plaintiffs' Third RFPs)(Azmi, Nimra) (Filed on 4/24/2020) (Entered: 04/24/2020)
152 ORDER RE MOTIONS TO DISMISS AND SUMMARY JUDGMENT. Signed by Judge James Donato on 6/5/2020. (jdlc2S, COURT STAFF) (Filed on 6/5/2020) (Entered: 06/05/2020)
153 ANSWER to 81 Corrected Second Amended Complaint by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo,

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Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Martinez, P.) (Filed on 6/19/2020) Modified on 6/23/2020 (gbaS, COURT STAFF). (Entered: 06/19/2020)
154 Discovery Letter Brief filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit A (Plaintiffs' First Interrogatories), # 2 Exhibit B (Plaintiffs' First RFPs), # 3 Exhibit C (Plaintiffs' Second RFPs), # 4 Exhibit D (Plaintiffs' Third RFPs))(Azmi, Nimra) (Filed on 7/15/2020) (Entered: 07/15/2020)
155 MOTION for leave to appear in Pro Hac Vice (Filing fee $ 310.) Filing fee previously paid on 07/30/20 filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Bauer, Mary) (Filed on 7/30/2020) (Entered: 07/30/2020)
156 ORDER granting 155 Motion for Pro Hac Vice as to Mary Bauer. (lrcS, COURT STAFF) (Filed on 7/31/2020) (Entered: 07/31/2020)
157 Letter from Defendants Requesting Clarification on the Scope of Discovery . (Kim, David) (Filed on 8/6/2020) (Entered: 08/06/2020)

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158 ORDER re Discovery Letter Briefs. The Court calls for a response by defendants to Dkt. Nos. 151 and 154, and a response by plaintiffs to Dkt. No. 157, by August 21, 2020. All responses should be in the letter brief format described in the Court's Standing Order for Civil Discovery. Signed by Judge James Donato on 8/7/2020. (This is a textonly entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 8/7/2020) (Entered: 08/07/2020)
159 Discovery Letter Brief filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Evans, Eric) (Filed on 8/17/2020) (Entered: 08/17/2020)
160 Letter from Defendants Responding to Plaintiffs' April and July 2020 Discovery Letters . (Kim, David) (Filed on 8/21/2020) (Entered: 08/21/2020)
161 Discovery Letter BriefResponding to Defendants' Letter Brief at ECF 157 filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Evans, Eric) (Filed on 8/21/2020) (Entered: 08/21/2020)

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162 NOTICE of Change In Counsel by Nimra Azmi (Azmi, Nimra) (Filed on 9/8/2020) (Entered: 09/08/2020)
163 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Exhibit A (Order in Najafi v. Pompeo))(Evans, Eric) (Filed on 9/28/2020) (Entered: 09/28/2020)
164 ORDER. The Court sets a status conference for January 7, 2021, at 10:00 a.m., with a joint status report due by December 30, 2020. Signed by Judge James Donato on 11/24/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 11/24/2020) (Entered: 11/24/2020)
165 MOTION to Continue the December 30, 2020 Joint Status Report and January 7, 2021 Status Hearing filed by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State. (Attachments: # 1 Declaration in Support of Motion)(Kim, David) (Filed on 12/23/2020) (Entered: 12/23/2020)
166 OPPOSITION/RESPONSE (re 165 MOTION to Continue the December 30, 2020 Joint Status Report and January 7, 2021 Status Hearing ) filed byHoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan

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Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Attachments: # 1 Exhibit Exhibit 1 (Status Report))(Evans, Eric) (Filed on 12/28/2020) (Entered: 12/28/2020)
167 ORDER. The status conference is continued to January 14, 2021, at 10:00 a.m., and will be held by Zoom Webinar. A joint status report is due by January 7, 2021. No further continuances will be granted. Signed by Judge James Donato on 12/30/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 12/30/2020) (Entered: 12/30/2020)
168 STATUS REPORT FILED 2021-01-07 IN CONSOLIDATED ACTION 3:18-cv07818 by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Evans, Eric) (Filed on 1/8/2021) (Entered: 01/08/2021)
169 CLERK'S NOTICE. For the status conference on January 14, 2021, at 10:00 a.m., each party should designate a lead counsel to speak at the conference by emailing the name of their lead counsel to Judge Donato's Courtroom Deputy, Ms. Lisa Clark, at jdcrd@cand.uscourts.gov by January 13, 2021, at 3:00 p.m. California time. The names for lead counsel are needed so that they can be identified during the Zoom hearing when the case is called. All lead counsel must call in fifteen minutes before the hearing to test internet, video, and audio capabilities.
All counsel, parties, members of the public, and press may join the webinar using the link or information below:

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https://canduscourts.zoomgov.com/j/1617171523?pwd=VWJqM2ZYT1UvNFZ0ZHN ZUUhGWTBCZz09
Webinar ID: 161 717 1523 Password: 213597
Or iPhone one-tap : US: +16692545252,,1617171523#,,1#,213597# or +16468287666,,1617171523#,,1#,213597#
Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 669 254 5252 or +1 646 828 7666
PLEASE NOTE: Persons granted remote access to court proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings (including those held by telephone or videoconference). See General Order 58 at Paragraph III. Any recording of a court proceeding held by video or teleconference, including "screen-shots" or other visual copying of a hearing, is absolutely prohibited. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, or any other sanctions deemed necessary by the court. Please see https://www.cand.uscourts.gov/zoom for information on preparing for and participating in a Zoom Webinar.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 1/12/2021) (Entered: 01/12/2021)
170 NOTICE of Appearance by Nicole Patrice Grant (Grant, Nicole) (Filed on 1/13/2021) (Entered: 01/13/2021)
171 Minute Entry for proceedings held before Judge James Donato: Status Conference held on 1/14/2021. (jdlc2S, COURT STAFF) (Date Filed: 1/15/2021) (Entered: 01/15/2021)
172 NOTICE of Revocation of PP 9645 by January 20, 2021 Presidential Proclamation by L. Francis Cissna, Kevin K. McAleenan, Kirstjen Nielsen, Michael R. Pompeo, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security,

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US Department of State re 171 Status Conference (Grant, Nicole) (Filed on 1/24/2021) Modified on 1/25/2021 (gbaS, COURT STAFF). (Entered: 01/24/2021)
173 STATUS REPORT by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Evans, Eric) (Filed on 2/8/2021) (Entered: 02/08/2021)
174 NOTICE by L. Francis Cissna, Daniel Coats, Kevin K. McAleenan, Kirstjen Nielsen, Office of the Director of National Intelligence, Michael R. Pompeo, Jefferson B. Sessions, III, Rex W. Tillerson, Donald J. Trump, Alex Tse, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, US Department of Homeland Security, US Department of Justice, US Department of State of Circuit Court Decisions Disposing of PP 9645 Cases on Mootness Grounds (Attachments: # 1 Attach. A - Kavoosian Order Dismissing Plaintiffs' Appeal Based on Mootness, # 2 Attach. B - ACRL Order Remanding Case with Instructions to Dismiss Plaintiffs' Claims as Moot)(Kim, David) (Filed on 2/11/2021) (Entered: 02/11/2021)
175 Response to Notice of Recent Decisions (ECF 174) by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah

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Zadeh. (Evans, Eric) (Filed on 2/12/2021) Modified on 2/16/2021 (gbaS, COURT STAFF). (Entered: 02/12/2021)
176 ORDER. Presidential Proclamation 10141, "Ending Discriminatory Bans on Entry to the United States," 86 Fed. Reg. 7005 (2021), revokes Presidential Proclamation 9645 and requires, among other things, plans within 45 days to ensure (i) that individuals whose immigrant visa applications were denied under PP 9645 "may have their applications reconsidered," and (ii) "that visa applicants are not prejudiced as a result of a previous visa denial" due to PP 9645. Plaintiffs in these related cases acknowledge that the new Proclamation's requirements, if carried out by the government, may remedy the harms plaintiffs have alleged in these cases. See Emami Dkt. Nos. 173, 175. The Court consequently finds it appropriate to stay these cases, terminate the pending discovery disputes, and administratively close the cases, pending further developments. The parties are directed to file a joint status update by June 7, 2021. Signed by Judge James Donato on 3/23/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 3/23/2021) (Entered: 03/23/2021)
177 NOTICE of Appearance by Matthew William Callahan (Callahan, Matthew) (Filed on 5/25/2021) (Entered: 05/25/2021)
178 NOTICE of Change In Counsel by Mary Catherine Bauer (Bauer, Mary) (Filed on 5/25/2021) (Entered: 05/25/2021)
179 STATUS REPORT Joint Status Report by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. (Evans, Eric) (Filed on 6/7/2021) (Entered: 06/07/2021)
180 ORDER. A status conference is set for September 2, 2021, at 10:00 a.m. in San Francisco, Courtroom 11, 19th Floor. Signed by Judge

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James Donato on 6/16/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc2S, COURT STAFF) (Filed on 6/16/2021) (Entered: 06/16/2021)
181 MOTION to Lift Stay filed by Hoda Mehrabi Mohammed Abadi, Khadija Aden, Najib Adi, Hezam Alarqaban, Ismail Alghazali, Malik Almathil, Ali Altuhaif, Aziz Altuhaif, Mahdi Afshar Arjmand, Bamshad Azizi, Hojjatollah Azizikoutenaei, Roghayeh Azizikoutenaei, Behnam Babalou, Fathollah Tolou Beydokhti, Farangis Emami, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, Abdurraouf Gseaa, Nastaran Hajiheydari, Mohamad Hamami, Ehsan Heidaryan, Afrooz Kharazmi, Najmeh Maharlouei, Behnaz Malekghaeini, Atefehossadat Motavaliabyazani, Maryam Mozafari, Mohammad Mehdi Mozaffary, Khalil Ali Nagi, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Maral Charkhtab Tabrizi, Clyde Jean Tedrick, II, Tannaz Toloubeydokhti, Soheil Vazehrad, Sudi Wardere, Afshan Alamshah Zadeh. Motion Hearing set for 9/2/2021 10:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Responses due by 7/27/2021. Replies due by 8/3/2021. (Attachments: # 1 Declaration of Max S. Wolson)(Freedman, John) (Filed on 7/13/2021) (Entered: 07/13/2021)

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 Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 1 of 45

1 SHABNAM LOTFI* (WI SBN 1090020)

VERONICA SUSTIC* (WI SBN 1093862)

2 LOTFI LEGAL, LLC

22 East Mifflin Street, Suite 302 3 Madison, WI 53703

Telephone: (608) 259-6226 4 Facsimile: (208) 977-9974

5

shabnam@lofilegal.com veronica@lotfilegal.com

MARK D. ROSENBAUM (CA SBN 59940) JUDY LONDON (CA SBN 149431) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 mrosenbaum@publiccounsel.org jlondon@publiccounsel.org

6 LUIS CORTES ROMERO (CA SBN 310852)
7 ALMA DAVID (CA SBN 257676) IMMIGRANT ADVOCACY & LITIGATION CENTER, PLLC
8 19309 68th Avenue S., Suite R102 Kent, WA 98032
9 Telephone: (253) 872-4730
Facsimile: (253) 237-1591 10 lcortes@ia-lc.com
adavid@ia-lc.com 11

*Pro hac vice forthcoming 12

13 Attorneys for Plaintiffs

14

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

Soheil Vazehrad; Atefehossadat Motavaliabyazani;

17 Behnam Babalou; Hoda Mehrabi Mohammad Abadi;

Mahdi Afshar Arjmand; Ehsan Heidaryan; Najmeh 18 Maharlouei; Nastaran Hajiheydari; Afrooz

Kharazmi; Afshan Alamshah Zadeh; Bamshad Azizi; 19 Roghayeh Azizikoutenaei; Hojjatollah

20

Azizikoutenaei; Clyde Jean Tedrick II; Mitra Farnoodian-Tedrick; Farajollah Farnoudian; Farangis

21 Emami; Tannaz Toloubeydokhti; Fathollah Tolou Beydokhti; Behnaz Malekghaeini; Maral Charkhtab

22 Tabrizi; Zahra Rouzbehani; Bahram Charkhtab Tabrizi; Maryam Mozafari; Nahid Golestanian;

23 Mohammad Mehdi Mozaffary

Civil Case No.
COMPLAINT FOR WRIT OF MANDAMUS AND INJUNCTIVE AND DECLARATORY RELIEF
CLASS ACTION
ADMINISTRATIVE PROCEDURE ACT CASE

24

Plaintiffs,

25 COMPLAINT - 1

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1

-against-

2 DONALD J. TRUMP, as President of the United

States of America; JEFFERSON BEAUREGARD 3 SESSIONS III, in his official capacity as Attorney

General of the United States; U.S. DEPARTMENT 4 OF JUSTICE; KIRSTJEN NIELSEN, in her official

5

capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY;

6 REX W. TILLERSON, in his official capacity as Secretary of State; U.S. DEPARTMENT OF STATE;

7 DAN COATS, in his official capacity as Director of National Intelligence; OFFICE OF THE

8 DIRECTOR OF NATIONAL INTELLIGENCE

9

Defendants.

10

INTRODUCTION

11 1. Mania Pour Aghdasi is a U.S. citizen residing in California. In September 2016, Ms.

12 Aghdasi’s brother passed away after battling brain cancer in the house in which her father lived
13 in Iran. Ms. Aghdasi is her father’s last remaining family member. She assisted her father, a 78-
14 year-old Iranian national, in applying for a visitor’s visa so they could be together in their grief.
15 During the long 14 months that followed, Ms. Aghdasi repeatedly contacted the U.S. Embassy,
16 her congressional representatives, the State Department, the White House—anyone who would
17 listen—to get her father’s visa approved as his health deteriorated. Ms. Aghdasi’s father died on
18 December 24, 2017, waiting for his visa to be issued. Two weeks later, his visa application was
19
20 denied pursuant to the Presidential Proclamation that established the latest travel ban. At no
21 point did anyone consider Ms. Aghdasi’s father for a waiver from the travel ban. Nonetheless

22 his visa was denied. Ms. Aghdasi’s story is emblematic of the destruction and tragedy that has

23 been wrought by the Proclamation’s reckless implementation, but her experience is sadly not

24 uncommon.

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1 2. Plaintiffs and proposed class members are American citizens, U.S. lawful permanent

2 residents, and foreign nationals who have approved visa petitions, or who have assisted family

3 members with filing for U.S. visas, and who seek entry to the United States to be reunited with
4 their American families or fulfill significant U.S. business relations.
5 3. In 2017, President Donald J. Trump attempted to institute three travel bans via executive 6
order and presidential proclamation. Each ban applied mostly to Muslim-majority countries. The 7
first two versions were struck down by federal district and appellate courts. The constitutionality 8
of the third travel ban is currently being litigated at the U.S. Supreme Court. On December 4, 9
2017, the Court issued a decision allowing the third travel ban to be implemented while the case 10
was heard on its merits. 11
4. On December 8, 2017, Defendants began implementing the third version of the travel 12
13 ban in a way that violates the Administrative Procedure Act (“APA”), the Immigration and
14 Nationality Act (“INA”), and Plaintiffs’ right to due process under the Fifth Amendment to the
15 U.S. Constitution. The Presidential Proclamation (“Proclamation”) that established this ban

16 specifically states that “case-by-case waivers” may be granted by consular officers under a non-

17 exclusive list of circumstances for visa applicants from the banned countries. Nonetheless, in

18 direct contravention of the terms of the Proclamation, Defendants have refused to consider such

19 waivers and have instead issued blanket denials of visas, regardless of personal circumstances

20 and without giving applicants the opportunity to argue their cases, thereby violating the APA,

21 the INA, and Plaintiffs’ right to Fifth Amendment due process.

22 5.

These claims are backed up by numbers published by Defendants themselves: State

23 Department has revealed that, as of March 6, 2018, only about a hundred waivers had been

24

granted to visa applicants from the banned countries, a rejection rate of more than 98%. 25

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1 6. Defendants’ unlawful and discriminatory actions have shattered Plaintiffs’ lives and

2 their prospects for being reunited with their loved ones as well as the lives and reunification

3 prospects of the scores of similarly situated families and individuals they seek to represent

4 through this action. They seek this Court’s intervention to cease visa denials due to the

5 Proclamation. Such intervention is needed to prevent ongoing and future harm to such

6 applicants and to protect the integrity of the U.S. visa process.

7 7.

At issue in this suit is Section 3 of the Proclamation, which allows for case-by-case

8 waivers from the Proclamation for visa applicants from the countries banned by the

9

Proclamation. 10

11 12 13 8.

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361

14 (Mandamus and Venue Act of 1962), 5 U.S.C. § 702 (APA), and 28 U.S.C. § 220 (Declaratory

15 Judgment Act). The United States has waived its sovereign immunity pursuant to 5 U.S.C. §

16 702. This Court may grant declaratory and injunctive relief pursuant to 5 U.S.C. § 702, 28

17 U.S.C. § 1651, and 28 U.S.C. § 2201–2202. A claim for attorney’s fees will be brought pursuant

18 to 5 U.S.C. § 504 and 28 U.S.C. § 2412(d).
19 9. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(e) because 20 Defendants are officers or employees of the United States acting in their official capacities and 21
agencies of the United States, many Plaintiffs reside in this judicial district, and no real property 22
is involved in this action. Plaintiffs have exhausted all administrative remedies. 23

24

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1 10. Intradistrict assignment is proper in the San Francisco Division because a substantial

2 part of the events or omissions that give rise to the claim occurred in San Francisco and Napa

3 Counties. Civil L. R. 3-2(c), (d). 4

5

PARTIES

6 11. Plaintiff Soheil Vazehrad is a U.S. citizen, residing in Napa, California.
7 12. Plaintiff Atefehossadat Motavaliabyazani is an Iranian national residing in Iran.
8 13. Ms. Motavaliabyazani has a pending nonimmigrant visa based on Mr. Vazehrad’s
9 approved K1 fiancée visa petition.
10
14. Plaintiff Mr. Behnam Babalou is an Iranian national residing in Iran who invested 11

$500,000.00 in CMB Infrastructure Investment Group XIV, L.P., located in San Bernardino, 12

13 California.

14 15. Plaintiff Mr. Behnam Babalou has an approved immigrant visa petition based on his

15 investments and significant business ties in CMB Infrastructure Investment Group XIV, L.P.

16 16. Plaintiff Hoda Mehrabi Mohammad Abadi is an Iranian national residing in Iran who

17 and has an approved immigrant visa petition based on her $500,000.00 investment in Kimpton

18 Hotels & Restaurants in Milwaukee, Wisconsin.
19 17. Plaintiff Dr. Mahdi Afshar Arjmand is an Iranian national, currently residing in Iran,
20 who has an approved immigrant visa petition based on his extensive record of achievements as
21 an alien with extraordinary ability.
22 18. Plaintiff Dr. Ehsan Heidaryan is an Iranian national, currently residing in Brazil, who
23 has an approved immigrant visa petition based on his extensive record of achievements as an
24 alien with extraordinary ability.
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1 19. Plaintiff Najmeh Maharlouei is an Iranian national currently residing in Shiraz, Iran,

2 who has an approved immigrant visa petition based on her extensive record of achievements and

3 the fact that her work is in the U.S. national interest.

4 20. Plaintiff Nastaran Hajiheydari is an Iranian national, currently residing in Iran, who has

5 an approved immigrant visa petition based on her extensive record of achievements and the fact

6 that her work is in the U.S. national interest.

7 21.
8 22.
9
23. 10

Plaintiff Afrooz Kharazmi is a U.S. citizen residing in Loveland, Ohio. Plaintiff Afshan Alamshah Zadeh is an Iranian national residing in Iran. Ms. Alamshah Zadeh has a pending immigrant visa based on Ms. Kharazmi’s approved

family-based immigrant visa petition for her. 11

24. Plaintiff Bamshad Azizi is a U.S. lawful permanent resident residing in San Jose, 12

13 California.

14 25. Plaintiffs Roghayeh Azizikoutenaei and Hojjatollah Azizikoutenaei are Iranian nationals

15 residing in Iran.

16 26. Mr. Bamshad Azizi assisted his parents, Ms. Azizikoutenaei and Mr. Azizikoutenaei,

17 with filing for tourist visas to visit him in San Jose, California.

18 27. Plaintiff Clyde Jean Tedrick II is an American citizen residing in Rockville, Maryland.
19 28. Plaintiff Mitra Farnoodian-Tedrick is a U.S. lawful permanent resident residing in
20 Rockville, Maryland.
21 29. Plaintiffs Farajollah Farnoudian and Farangis Emami are Iranian nationals currently
22 residing in Iran.
23 30. Mr. Tedrick and Ms. Farnoodian-Tedrick assisted Mr. Farnoudian and Ms. Emami with
24 applying for tourist visas.
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 7 of 45
1 31. Plaintiff Tannaz Toloubeydokhti is a U.S. citizen who resides in San Diego, California.
2 32. Plaintiffs Fathollah Tolou Beydokhti and Behnaz Malekghaeini are Iranian nationals
3 residing in Iran.
4 33. Mr. Beydokhti and Ms. Malekghaeini have pending immigrant visas based on Ms. 5 Toloubeydokhti’s approved family-based immigrant visa petitions. 6
34. Plaintiff Maral Charkhtab Tabrizi is a U.S. lawful permanent resident living in Tempe, 7
Arizona, who is married to a U.S. citizen and has just given birth to her first child. 8
35. Plaintiffs Zahra Rouzbehani and Bahram Charkhtab Tabrizi are Iranian nationals 9
residing in Iran. 10
36. Ms. Tabrizi assisted her parents, Ms. Rouzbehani and Mr. Charkhtab Tabrizi, with filing 11
for tourist visas. 12 13 37. Plaintiff Maryam Mozafari is an U.S. lawful permanent resident residing in San
14 Francisco, California.
15 38. Plaintiffs Nahid Golestanian and Mohammad Mehdi Mozaffary are Iranian nationals
16 residing in Iran.
17 39. Ms. Mozafari assisted her parents, Mrs. Golestanian and Mr. Mozaffary with filing for
18 tourist visas.
19 40. Defendant Donald J. Trump is the President of the United States and is sued in his 20 official capacity. President Trump issued the Proclamation challenged in this suit. 21
41. Defendant Jefferson Beauregard Sessions III is the U.S. Attorney General and is sued in 22
his official capacity. Attorney General Sessions is responsible for overseeing the activities of the 23
Department of Justice (“DOJ”) with respect to the implementation and enforcement of the 24
Proclamation. 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 8 of 45
1 42. Defendant DOJ is a cabinet-level department of the U.S. federal government. The
2 Proclamation assigns DOJ a variety of responsibilities regarding its implementation and
3 enforcement.
4 43. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and is sued in her 5 official capacity. Secretary Nielsen is responsible for administration of the INA by the U.S. 6
Department of Homeland Security (“DHS”) and for overseeing enforcement and 7
implementation of the Proclamation by all DHS staff. 8
44. Defendant DHS is a cabinet-level department of the U.S. federal government. Its 9
components include U.S. Citizenship and Immigration Services (“USCIS”), Customs and 10
Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”). USCIS’s 11
responsibilities include adjudicating requests for immigration benefits for individuals located 12 13 within the United States. CBP’s responsibilities include inspecting and admitting immigrants
14 and nonimmigrants arriving with U.S. visas at international points of entry, including airports
15 and land borders. ICE’s responsibilities include enforcing federal immigration law within the
16 interior of the United States. The Proclamation assigns DHS a variety of responsibilities
17 regarding its enforcement.
18 45. Defendant Rex W. Tillerson is the Secretary of State and is sued in his official capacity.
19 Secretary Tillerson is responsible for overseeing enforcement and implementation of the 20 Proclamation by all U.S. Department of State (“State Department”) staff. 21
46. Defendant State Department is a cabinet-level department of the U.S. federal 22
government responsible for the issuance of immigrant and nonimmigrant visas abroad. The 23
Presidential Proclamation assigns the State Department a variety of responsibilities regarding its 24
implementation and enforcement. 25
COMPLAINT - 8

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 9 of 45
1 47. Defendant Dan Coats is the Director of National Intelligence and is sued in his official
2 capacity. Director Coats is responsible for overseeing enforcement and implementation of the
3 Proclamation by all Office of the Director of National Intelligence (“ODNI”) staff. 4 48. Defendant ODNI is an independent agency of the U.S. federal government which has 5 specific responsibilities and obligations with respect to implementation of the Proclamation. 6
7 FACTUAL ALLEGATIONS
8 I. Background
9 49. On September 24, 2017, President Trump signed the third version of the travel ban,
10 Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for
11 Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”
12 13 Presidential Proclamation 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017). (Exhibit A) The 14 Proclamation provides for discretionary case-by-case waivers from a now-indefinite travel ban
15 on nationals of the six Muslim-majority countries.
16 50. Affected states and individuals immediately brought suit against the Proclamation in
17 federal district court in Hawaii and Maryland, seeking to block implementation of the travel
18 ban. On October 17, 2017, the Hawaii court granted a nationwide temporary restraining order
19 and, the following day, the Maryland court issued a nationwide preliminary injunction. 20 51. The government appealed these decisions to the Ninth and Fourth Circuit Courts of 21
Appeal. It also requested the U.S. Supreme Court to issue a stay of the Hawaii and Maryland 22
courts’ decisions blocking the Proclamation’s implementation pending disposition of its appeals 23
of those decisions in the circuit courts. The U.S. Supreme Court granted that request on 24
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 10 of 45
1 Monday, December 4, 2017, thereby allowing the Proclamation’s travel ban to take full effect.
2 Oral arguments in the circuit courts proceeded.
3 52. On Friday, December 22, 2017, the Ninth Circuit affirmed the Hawaii court’s 4 preliminary injunction order but stayed its decision pending review by the U.S. Supreme Court. 5 On February 14, 2018, the Fourth Circuit affirmed the Maryland court’s preliminary injunction 6
order, but also stayed its decision pending review by the U.S. Supreme Court. 7
53. In the midst of the legal challenges to the Proclamation, the State Department began 8
implementing the travel ban. Since the U.S. Supreme Court allowed full implementation of the 9
latest iteration of the ban, officials at consulates and embassies in the banned countries have 10
engaged in a pattern of indiscriminately denying immigrant and non-immigrant visas to 11
applicants from the banned countries. 12 13 54. Indeed, in a response to an inquiry by two U.S. senators, the State Department has 14 revealed that, as of January 8, 2018, only two waivers were granted to applicants of the banned
15 countries out of a total of 6,555 applicants who were eligible to be considered for waivers.
16 Letter from Mary K. Waters, U.S. Department of State, to Chris Van Hollen, U.S. Senator (Feb.
17 22, 2018), http://fingfx.thomsonreuters.com/gfx/reuterscom/1/60/60/letter.pdf (Exhibit B) As of
18 March 6, 2018, the State Department had apparently issued 100 more waivers, meaning that
19 consular officers have rejected more than 98% of visa applicants. Yaganeh Torbati & Mica 20 Rosenberg, Exclusive: Visa Waivers Rarely Granted Under Trump’s Latest U.S. Travel Ban, 21
Reuters (Mar. 6, 2018), https://www.reuters.com/article/us-usa-immigration-travelban22
exclusive/exclusive-visa-waivers-rarely-granted-under-trumps-latest-u-s-travel-ban-data23
idUSKCN1GI2DW. (Exhibit C) 24
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 11 of 45
1 55. The two most recent versions of the travel ban specifically provided for “case-by-case
2 waivers” to be granted by consular officers under a non-exclusive list of circumstances for visa
3 applicants from the banned countries. Nonetheless, in direct contravention of the terms of the
4 Proclamation, Defendants have refused to consider such waivers and have instead issued blanket 5 denials of visas, regardless of personal circumstances and without giving applicants the 6
opportunity to argue their cases. Thus, irrespective of an applicant’s personal circumstances or 7
bona fide relationship to the United States, the government has found a way to circumvent both 8
the courts and its own instruction and fully implement the Muslim travel ban. 9
56. A mere three days after the U.S. Supreme Court’s lifting of the stays preventing 10
implementation of the travel ban, the State Department, without taking time to develop 11
standards or protocols, recklessly and irresponsibly executed a ban that greatly harmed, and 12 13 continues to harm, more than 150 million visa applicants worldwide. Visa applicants contacted 14 embassies and consulates abroad to ask for clarity but were given the runaround. Attorneys
15 contacted the State Department for clarification but received inadequate and inconsistent
16 responses. The problem continues. As of the date of filing of this complaint, the State
17 Department also lacks protocols for considering waiver applications for individuals whose cases
18 were pending administrative processing1 at the time the ban went into effect and for visa
19 applicants whose visas were approved prior to implementation of the ban. 20
21
22 1 Administrative processing is a period after a visa interview during which applicants undergo 23 additional screening outside of “normal” visa processing. Maggio & Kattar & The Pennsylvania
State University Law School’s Center for Immigrants’ Rights, Administrative Processing FAQ, 24 *1, https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/Administrative-
Processing-FAQ.pdf (accessed Jan. 21, 2018). “Before issuing a visa, consular officers review 25 different databases to determine if information exists that may impact individual eligibility for a
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1 57. The process remains so opaque that, in addition to the formal request for information

2 from U.S. senators, civil rights organizations have filed a FOIA request seeking documents from

3 the State Department related to the travel ban waiver process. (Exhibit D) As of the date of 4 filing, Defendants have not yet complied with the request. 5

6 II. Relevant Law

7 58. Section 3 of the Proclamation contains a subsection entitled “Waivers,” which states:

8

Notwithstanding the suspensions of and limitations on entry set

9

forth in section 2 of this proclamation, a consular officer, or the

Commissioner, United States Customs and Border Protection

10

(CBP), or the Commissioner’s designee, as appropriate, may, in

their discretion, grant waivers on a case-by-case basis to permit

11

the entry of foreign nationals for whom entry is otherwise

suspended or limited if such foreign nationals demonstrate that

12

waivers would be appropriate and consistent with subsections (i)

13

through (iv) of this subsection [laying out waiver standards].

14

82 Fed. Reg. at 45167.

15 59. The Proclamation explains that a waiver may be granted if, in a consular officer’s or

16 CBP’s discretion, a foreign national has demonstrated that (1) a denial of entry “would cause the

17 foreign national undue hardship”; (2) his or her “entry would not pose a threat to the national

18 security or public safety of the United States”; and (3) his or her “entry would be in the national
19 interest.” 82 Fed. Reg. at 45168.
20 60. The Proclamation then specifies that while “case-by-case waivers may not be granted
21 categorically,” they “may be appropriate, subject to the limitations, conditions, and requirements
22 set forth” in subsection (c), “in individual circumstances ….” Id. It proceeds to give a number of
23 examples of such circumstances under which issuance of a waiver may be appropriate,
24 including:
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1

(A) the foreign national has previously been admitted to the

United States for a continuous period of work, study, or other

2

long-term activity, is outside the United States on the applicable

effective date … of this proclamation, seeks to reenter the United

3

States to resume that activity, and the denial of reentry would

impair that activity; 4

5

(B) the foreign national has previously established significant contacts with the United States but is outside the United States on

6

the applicable effective date ... of this proclamation for work,

study, or other lawful activity;

7 (C) the foreign national seeks to enter the United States for

8

significant business or professional obligations and the denial of

entry would impair those obligations;

9

(D) the foreign national seeks to enter the United States to visit or

10

reside with a close family member (e.g., a spouse, child, or parent)

who is a United States citizen, lawful permanent resident, or alien

11

lawfully admitted on a valid nonimmigrant visa, and the denial of

entry would cause the foreign national undue hardship; 12

13

(E) the foreign national is an infant, a young child or adoptee, an

individual needing urgent medical care, or someone whose entry

14

is otherwise justified by the special circumstances of the case ….

15 82 Fed. Reg. at 45169.

16 61. The Proclamation also instructs that, “[t]he Secretary of State and the Secretary of

17 Homeland Security shall coordinate to adopt guidance addressing the circumstances in which

18 waivers may be appropriate for foreign nationals seeking entry as immigrants or

19 nonimmigrants.” 82 Fed. Reg. at 45168. It further directs the Secretaries to:

20

[A]ddress the standards, policies and procedures for:

21 (A) determining whether the entry of a foreign national would not

22

pose a threat to the national security or public safety of the United

States;

23 (B) determining whether the entry of a foreign national would be

24

in the national interest;

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1

(C) addressing and managing the risks of making such a

determination in light of the inadequacies in information sharing,

2

identity management, and other potential dangers posed by the

nationals of individual countries subject to the restrictions and

3

limitations imposed by this proclamation;

4

(D) assessing whether the United States has access, at the time of

5

the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy the

6

requirements of subsection (i) of this subsection; and

7

(E) determining the special circumstances that would justify

granting a waiver under subsection (iv)(E) of this subsection.

8 Id.
9

62. Defendants have not yet developed such guidance and have instead proceeded full speed 10

to implement the ban, rejecting more than 98% of visa applicants. 11

12

13

III. Plaintiffs have been denied due consideration for a waiver of the Proclamation

14 63. Plaintiff Soheil Vazehrad is a U.S. citizen who is employed as a registered dental

15 hygienist and resides in Napa, California. He filed an application with USCIS for a fiancée visa

16 for his soon-to-be wife, Ms. Atefehossadat Motavaliabyazani, in April 2016. Ms.

17 Motavaliabyazani is an Iranian national who currently resides in Iran. USCIS approved Mr.

18 Vazehrad's petition on May 11, 2016. Ms. Motavaliabyazani attended her interview at the U.S.

19 Embassy in Yerevan, Armenia, on October 20, 2016, and was told that her case would go

20 through routine administrative processing. On January 4, 2018, she received an email stating the

21 following:

22 Dear Applicant:

23 This is to inform you that a consular officer found you ineligible

24

for a visa under Section 212(f) of the Immigration and Nationality

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 15 of 45

1

Act, pursuant to Presidential Proclamation 9645. Today’s decision

cannot be appealed.... 2

Taking into account the provisions of the Proclamation, a waiver

3

will not be granted in your case.

4 (Exhibit E) 5 64. Thus, Ms. Motavaliabyazani’s visa was refused pursuant to the Proclamation and she

6 was ineligible for a waiver of the Proclamation, despite the facts that her fiancé, Mr. Vazehrad,

7 is a U.S. citizen, that her interview took place almost a year before the Proclamation was signed,

8 and that, once the Proclamation came into effect, she was never given the opportunity to request

9 a waiver of the Proclamation.

10 65. Mr. Benham Babalou is an Iranian national who invested five hundred thousand dollars

11 ($500,000.00 USD) in the United States as part of his petition for an employment-based fifth
12 preference (EB-5) investment visa2 in 2011. USCIS adjudicated his case and sent him an
13 approval notice four years later, on December 15, 2015. Mr. Babalou then attended his
14 immigrant visa interview at the U.S. Embassy in Yerevan, Armenia, on May 24, 2016, after
15 which his case was placed in administrative processing. On December 22, 2017, six years after
16 his initial investment, he received a visa denial via an email identical to that sent to Ms.
17 Motavaliabyazani.
18 66. Thus, Mr. Babalou’s visa was refused pursuant to the Proclamation and he was
19
20 ineligible for a waiver of the Proclamation, despite the facts that the Proclamation would not

21

22 2 The EB-5 investment visa is designed to give permanent resident status to entrepreneurs (and 23 their spouses and unmarried children under 21) who (1) “[m]ake the necessary investment in a
commercial enterprise in the United States” (either $500,000 or $1 million); and (2) “[p]lan to 24 create or preserve 10 permanent full-time jobs for qualified U.S. workers.” USCIS, EB-5
Immigrant Investor Program, https://www.uscis.gov/eb-5 (accessed Jan. 21, 2018). 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 16 of 45

1 come into existence until almost a year and a half after Mr. Babalou’s interview at the Embassy

2 and, further, that once the Proclamation came into effect, he was never given the opportunity to

3 request a waiver of the Proclamation. His attorneys continue to request a waiver of the
4 Proclamation to no avail.
5 67. Ms. Hoda Mehrabi Mohammad Abadi is an Iranian national who invested five hundred 6
thousand dollars ($500,000.00) in the United States as part of her petition she filed on August 5, 7
2014, for an employment-based fifth preference (EB-5) investment visa. USCIS adjudicated her 8
case and sent her an approval notice nearly two years later, on June 9, 2016. Ms. Mehrabi 9
Mohammad Abadi attended her immigrant visa interview at the U.S. Embassy in Yerevan, 10
Armenia, on February 23, 2017, after which her case was placed in administrative processing. 11
On December 14, 2017, her attorney received the same email that Mr. Babalou received stating 12
13 that her visa was refused pursuant to the Proclamation and she was ineligible for a waiver.
14 68. Her attorney tried to request the Embassy to consider Ms. Mehrabi Mohammad Abadi’s
15 case for a waiver from the Proclamation, but the Embassy responded again on December 17,

16 2017, with the following:

17

Dear inquirer,

18 19 20 21 22 (Exhibit F)

Unfortunately, your case is not eligible for a waiver under Presidential Proclamation 9645. This refusal under Section 212(f) of the Immigration and Nationality Act applies only to the current visa application. Please be advised that Presidential Proclamation 9645 currently restricts issuance of most visas to nationals of Iran and seven other countries.

23 69. This despite the facts that the Proclamation would not come into existence until long

24 after her visa interview and, further, that once it came into effect, she was never given the

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 17 of 45
1 opportunity to request a waiver of the Proclamation, nor was she informed of her right to be
2 considered for a waiver.
3 70. Dr. Mahdi Afshar Arjmand is an Iranian national who filed for an EB-1A (alien with
4 extraordinary ability) immigrant visa on December 27, 2016, and received an approval notice on 5 January 9, 2017. He attended his immigrant visa interview with his family on July 25, 2017 at 6
the U.S. Embassy in Yerevan, Armenia. The officer informed them that their case looked good, 7
but just needed to go through administrative processing. On January 12, 2018, the Embassy 8
emailed Dr. Afshar Arjmand the same denial letter that Mr. Babalou and Ms. Mehrabi 9
Mohammad Abadi received. The consulate never mentioned anything about a waiver process. 10
Dr. Afshar Arjmand had a job offer from the University of California, San Diego, to work as a 11
researcher and professor. The Embassy refused to consider Dr. Afshar Arjmand for a waiver 12 13 even though the university had sent multiple emails to the Embassy requesting it to issue Dr. 14 Afshar Arjmand's visa so he could start his position there.
15 71. Dr. Ehsan Heidaryan, a world-renowned professor of chemical engineering and Iranian
16 national, filed a petition for an employment-based first preference visa for aliens with
17 extraordinary ability (EB-1A)3 with USCIS on February 7, 2017. Based on his impressive
18 record of achievements in his field, USCIS approved Dr. Heidaryan’s petition on March 3,
19 2017. He attended his immigrant visa interview at the U.S. Consulate General in Rio de Janeiro, 20 Brazil, on December 23, 2017. Thereafter, the Consulate emailed Dr. Heidaryan to inform him 21
22 3 To qualify for an EB-1A visa an applicant “must be able to demonstrate extraordinary ability 23 in the sciences, arts, education, business, or athletics through sustained national or international
acclaim.” USCIS, Employment-Based Immigration: First Preference EB-1, 24 https://www.uscis.gov/working-united-states/permanent-workers/employment-based-
immigration-first-preference-eb-1 (accessed Jan. 21, 2018). 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 18 of 45

1 that since he is an Iranian national, his immigrant visa must be refused because of the

2 Proclamation. Specifically, the consulate wrote:

3 4 5 6
(Exhibit G) 7

Dear Sir,
Unfortunately your immigrant visa is refused under Presidential Proclamation 9645 and now considered closed. Do not need to fill out the questionnaire we sent by email.

8 Not only did the Consulate never mention anything about a waiver process or how Dr.

9 Heidaryan could prove his eligibility, but it affirmatively stopped him from even completing his

10 visa application.

11 72. Ms. Najmeh Maharlouei is an Iranian national currently residing in Shiraz, Iran, where
12 she is employed as a health researcher and Associate Professor of Community Medicine at
13 Shiraz University of Medical Sciences. She filed an application with USCIS for an immigrant
14 visa under the category of employment-based second preference (EB-2) with a National Interest
15 Waiver4 on June 20, 2015. Her case was approved on March 4, 2016, and Ms. Maharlouei
16 attended her immigrant visa interview at the U.S. Embassy in Yerevan, Armenia, on October 6,
17 2016. She was told at that interview that there were no problems with her case, but that she
18 would have to undergo routine administrative processing. Ms. Maharlouei received a notice
19

20

21 4 An applicant can acquire permanent residency under the EB-2 category if she is a foreign 22 national who has an advanced degree and exceptional ability in the sciences, art, or business.
USCIS, Employment-Based Immigration: Second Preference EB-2, 23 https://www.uscis.gov/working-united-states/permanent-workers/employment-based-
immigration-second-preference-eb-2 (accessed Jan. 21, 2018). This category usually requires 24 that the applicant’s employer get a labor certification from the U.S. Department of Labor, but an
applicant can receive a National Interest Waiver of that requirement if she shows that her work 25 is in the U.S. national interest.
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 19 of 45
1 denying her visa application pursuant to the Proclamation on December 22, 2017. She at no
2 point had the opportunity to request a waiver of the Proclamation despite the fact that the very 3 reason her immigrant visa petition was approved by USCIS was a determination that her work is 4 in the U.S. national interest. The Proclamation would not come into existence until more than a 5 year after Ms. Maharlouei’s interview. 6
73. Plaintiff Nastaran Hajiheydari is an Iranian national currently residing in Iran where she 7
works in the field of Information Technology Business as an Associate Professor at the 8
University of Tehran. She filed an application with USCIS for an immigrant visa under the 9
category of employment-based second preference (EB-2) with a National Interest Waiver on 10
October 14, 2016. Her case was approved less than 40 days later in November 2016, and Ms. 11
Hajiheydari and her family attended their immigrant visa interviews at the U.S. Embassy in 12 13 Yerevan, Armenia, on October 26, 2017. Their cases were placed in routine administrative 14 processing. Ms. Hajiheydari received an email notice denying her family’s visa applications 15 pursuant to the Proclamation on January 16, 2018. She at no point had the opportunity to request
16 a waiver of the Proclamation despite the fact that the very reason her immigrant visa petition
17 was approved by USCIS was a determination that her work is in the U.S. national interest.
18 74. Plaintiff Afrooz Kharazmi, a U.S. citizen residing in Loveland, Ohio, filed an immigrant 19 visa petition with USCIS on June 1, 2004, for her sister, Plaintiff Afshan Alamshah Zadeh, an 20 Iranian national currently residing in Iran. Ms. Alamshah Zadeh waited in line for 12 years for 21
22
23
24
25 COMPLAINT - 19

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 20 of 45
1 her priority date5 to become current. USCIS approved her petition in October 2016. The U.S.
2 Embassy in Abu Dhabi, UAE, scheduled Ms. Alamshah Zadeh's immigrant visa interview for
3 January 7, 2018. She attended the interview and was informed that her immigrant visa was
4 denied pursuant to the Proclamation. Ms. Alamshah Zadeh did not have the opportunity to apply 5 for a waiver, thus the consular officer did not consider the fact that she has two U.S. citizen 6
parents and a U.S. citizen sister with whom she seeks to be reunited, or the fact that she 7
patiently waited in line for 12 years for her visa number to become current. 8
75. Plaintiff Bamshad Azizi is a U.S. lawful permanent resident residing in San Jose, 9
California, and co-founder of a cybersecurity startup in the United States. His parents, 10
Roghayeh Azizikoutenaei and Hojjatollah Azizikoutenaei applied for tourist visas to come visit 11
him and his sister. They attended their interview at the U.S. Consulate General in Dubai, UAE, 12 13 on September 12, 2017, 12 days before the signing of the Proclamation, and were told that their 14 visas would be ready in two weeks. In disbelief at their luck, Mr. and Mrs. Azizikoutenaei asked
15 if their visas would really be ready in only two weeks, and the interviewing officer smiled and
16 confirmed. On October 3, 2017, they received an email from the Embassy requesting that they
17 send their passports so that their visas could be stamped. They did so and, to their dismay, their
18 passports were returned eleven days later with no visas and with a letter stating that their
19 applications had been placed in administrative processing. After following up multiple times 20 with the Embassy and receiving only automated responses, Mr. and Mrs. Azizikoutenaei 21
22 5 An applicant’s priority date is the date upon which her application was filed. An applicant’s 23 priority date must become “current” before she can apply for an adjustment of status to that of
permanent resident. Spouses, parents, and minor children of U.S. citizens do not have to wait for 24 visas to become available, so their priority dates are irrelevant, but all other categories of
immigrants have to wait in line, in some cases for decades, for their priority dates to become 25 current.
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 21 of 45
1 received rejections on January 10, 2018. Mrs. Azizikoutenaei was diagnosed with cancer about
2 a year ago and had to undergo two surgeries and a series of intense chemotherapy sessions. Mr.
3 Azizikoutenaei also had surgery recently. They are both still quite weak and the family just
4 wants to be reunited. They were unable to tell officers about their circumstances as they did not 5 have the opportunity to request a waiver from the Proclamation at any point. 6
76. Plaintiff Clyde Jean Tedrick II is an American citizen residing in Rockville, Maryland, 7
with Plaintiff Mitra Farnoodian-Tedrick, U.S. lawful permanent resident. They assisted Ms. 8
Farnoodian-Tedrick’s parents, Farajollah Farnoudian and Farangis Emami, with applying for 9
tourist visas to attend their wedding on May 27, 2018. Mr. Farnoudian and Ms. Emami had 10
visited the U.S. before and had fully complied with the terms of their tourist visas. They 11
attended their visa interview on October 17, 2017, at the U.S. Consulate General in Dubai, 12 13 UAE. Mr. Farnoudian’s visa application was placed in administrative processing, but Ms.
14 Emami’s visa application was approved. Mr. Farnoudian received an email on January 8, 2018,
15 informing him that his visa had been denied pursuant to the Proclamation. Ms. Emami was
16 never notified that her already-approved visa had been denied pursuant to the Proclamation, but
17 only found out after checking the status of her case online. At no point did anyone in the family
18 have an opportunity to request a waiver. Due to the lack of opportunity to request a waiver, Mr.
19 Tedrick and Ms. Farnoodian-Tedrick were forced to cancel their wedding. 20 77. Plaintiff Tannaz Toloubeydokhti is a U.S. citizen who resides in San Diego, California. 21
She is employed as an obstetric-gynecologist and has dedicated her career to improving the lives 22
of American mothers and babies. She is herself in her last trimester of pregnancy and, knowing 23
how difficult labor and caring for a newborn can be, she seeks family support for help both in 24
delivery of the baby and with childcare afterwards. Ms. Toloubeydokhti petitioned for 25
COMPLAINT - 21

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 22 of 45
1 immigrant visas for her parents, Fathollah Tolou Beydokhti and Behnaz Malekghaeini, Iranian
2 nationals, on September 1, 2016. Their cases were approved, and her parents attended their
3 immigrant visa interviews on December 21, 2017, at the U.S. Embassy in Yerevan, Armenia.
4 Mr. Beydokhti and Ms. Malekghaeini, went prepared to their interviews, ready to request 5 waivers of the Proclamation with supporting documents in hand. But when they presented their 6
documents, the officer refused to review them, told them that they did not qualify for a waiver, 7
and their visas were denied. 8
78. Plaintiff Maral Charkhtab Tabrizi is a U.S. lawful permanent resident residing in 9
Arizona who is married to a U.S. citizen and is pregnant with her first child. Her parents, 10
Plaintiffs Zahra Rouzbehani and Bahram Charkhtab Tabrizi, who have traveled to the United 11
States many times before, applied for tourist visas to witness the birth of their first grandchild. 12 13 They attended their interviews at the U.S. Consulate General in Dubai, UAE, on October 19,
14 2017. Ms. Rouzbehani was approved right away, but Mr. Charkhtab Tabrizi’s case was sent for
15 administrative processing. Ms. Rouzbehani decided to not send the passport for visa stamping
16 immediately, but to wait for her husband’s administrative processing to be completed first so
17 that they could travel together to the United States. Immediately after the Supreme Court
18 allowed the Proclamation to go into effect, Ms. Rouzbehani sent her passport for visa stamping.
19 Near the end of December 2017, the passport was returned without a visa and their visas were 20 refused pursuant to the Proclamation. They were not given the opportunity to apply for a waiver. 21
79. Had they been given that opportunity, Ms. Charkhtab Tabrizi’s parents would have told 22
the adjudicating officer that they wanted to be there to support their daughter for a number of 23
reasons. The first is financial. Ms. Charkhtab Tabrizi’s household finances depend heavily on 24
her salary and, because she is a contractor for Google and has been there for less than 12 months 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 23 of 45
1 and is therefore not eligible for maternity leave or for time off under the Family Medical Leave
2 Act, she had planned to return to work as soon as possible. Without her parents, Ms. Charkhtab
3 Tabrizi will be unable to go back to work as quickly as she had hoped and will be unable to
4 afford daycare after an unpaid leave during which time she and her husband will be depleting 5 their savings. The second reason is medical. Ms. Charkhtab Tabrizi has a connective tissue 6
disorder which has caused her severe pain during her pregnancy and makes her daily activities 7
very difficult. She had hoped that her parents could be there to support her during her recovery 8
so she could go back to work quickly; this is important because her contract may end before she 9
has fully recovered and she may lose all of her benefits and her opportunity to extend her 10
contract. The denial of Ms. Rouzbehani’s and Mr. Charkhtab Tabrizi’s visas is causing Ms. 11
Charkhtab Tabrizi severe financial hardship and may even cost her her job. 12 13 80. Plaintiff Maryam Mozafari is a U.S. permanent resident currently residing in San
14 Francisco, California. She is pregnant and wanted her parents, Ms. Nahid Golestanian and Mr.
15 Mohammad Mehdi Mozaffary, to come visit her and provide her the support she needs during
16 this stressful time. They had both visited the United States in 2014, and had left the country well
17 in advance of the expiration of their visas, and were thus confident they would be granted tourist
18 visas again. On December 28, 2016, they applied for tourist visas at the U.S. Consulate General
19 in Dubai, UAE. Ms. Golestanian’s visa was granted immediately. Mr. Mozaffary was asked for 20 his mandatory military service documents. He did not have them with him, as the documents 21
were not mentioned in the list of required documents for the visa application, and he was asked 22
to reapply and bring the documents with him to the next interview. 23
81. Because of the timing of the first two travel bans, Mr. Mozaffary had to delay his 24
interview, and was not able to get back in to the Consulate until July 30, 2017. He was told by 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 24 of 45

1 the consular officer that his documents appeared to be in order, but that he would be sending

2 Mr. Mozaffary additional forms to fill out. Mr. Mozaffary received the forms in August and

3 returned them to the Consulate soon thereafter. For the next several months, Ms. Mozafari and
4 Mr. Mozaffary sent several emails to the Consulate to inquire about the status of the cases, but
5 either received no reply at all or a system-generated standard response. On January 11, 2018, 6
Mr. Mozaffary’s visa was denied pursuant to the Proclamation. He did not have an opportunity 7
to request a waiver. Mr. Mozaffary suffers from a heart condition which requires that he be 8
accompanied at all times. During this time, Ms. Golestanian came to the United States to visit 9
Ms. Mozafari. She wants to stay with Ms. Mozafari to support her during her pregnancy, but she 10
feels torn between her daughter and her ailing husband. She has been put in an impossible 11
position. 12
13 82. Despite the fact that the Proclamation contains examples of specific circumstances under
14 which issuance of a waiver to an applicant would be appropriate, Defendants have abrogated
15 their duty to consider Plaintiffs’ individual circumstances—all of which fall cleanly under one

16 or more of these examples—and have instead engaged in categorical refusals to consider waiver

17 applications and, thus, categorical denials of visas to the individuals affected by the travel ban.

18

19

IV. President Trump’s ongoing promise to implement “a total and complete

20

shutdown of Muslims entering the United States”

21 83. Prior to his election, President Trump campaigned on the promise that he would ban

22 Muslims from entering the United States. On December 7, 2015, then-candidate Trump issued a

23 press release calling for “a total and complete shutdown of Muslims entering the United States.”

24

25 COMPLAINT - 24

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 25 of 45
1 Donald J. Trump Campaign, Donald J. Trump Statement on Preventing Muslim Immigration
2 (Dec. 7, 2015). (Exhibit H)
3 84. When asked on the following day what the customs process would look like for a 4 Muslim non-citizen attempting to enter the United States, candidate Trump stated, “[T]hey 5 would say, ‘are you Muslim?’” Nick Gass, Trump not bothered by comparisons to Hitler, 6
POLITICO (Dec. 8, 2015), https://www.politico.com/trump-muslims-shutdown-hitler7
comparison. Candidate Trump then confirmed that, if they answered in the affirmative, they 8
would not be allowed into the country. Id. 9
85. On June 13, 2016, candidate Trump reiterated his promise to ban all Muslims entering 10
this country until the United States is “in a position to properly and perfectly screen those 11
people coming into our country.” Ryan Teague Beckwith, Read Donald Trump’s Speech on the 12 13 Orlando Shooting, TIME (Jun. 13, 2016), http://time.com/4367120/orlando-shooting-donald14 trump-
15 transcript/.
16 86. In a foreign policy speech delivered on August 15, 2016, candidate Trump noted that the
17 United States could not “adequate[ly] screen[]” immigrants because it admits “about 100,000
18 permanent immigrants from the Middle East every year.” Donald Trump Foreign Policy Speech
19 in Youngstown, C-SPAN (Aug. 15, 2016), https://www.c-span.org/video/?413977-1/donald20 trump-delivers-foreign-policy-address (quoted remarks at 50:46). Candidate Trump proposed 21
creating an ideological screening test for immigration applicants, which would “screen out any 22
who have hostile attitudes towards our country or its principles – or who believe that Sharia law 23
should supplant American law.” He referred to this proposal as “extreme, extreme vetting.” Id. 24
25 COMPLAINT - 25

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 26 of 45

1 87. On June 5, 2017, after litigation against the first travel ban led to its replacement by a

2 revised ban, President Trump issued a series of tweets criticizing the revision and calling for a

3 return to the first travel ban. He stated, “The Justice Dept. should have stayed with the original
4 Travel Ban, not the watered down, politically correct version they submitted to S.C.” (Exhibit I)
5 President Trump also tweeted: “People, the lawyers and the courts can call it whatever they
6 want, but I am calling it what we need and what it is a TRAVEL BAN!” (Exhibit J)
7 88. Defendants have pointed to the existence of a waivers provision in the Proclamation as
8 proof of its constitutionality. But the president’s statements, both before and during his time in
9 office, combined with the blanket denials of waivers and visas to applicants from the banned
10 Muslim-majority countries lay bare Defendants’ intent to institute a complete ban on Muslims
11
entering the United States. 12

13

14

V. President Trump’s promise to end family reunification, a.k.a. chain migration

15 89. On January 4, 2018, President Trump tweeted, “…We must BUILD THE WALL, stop

16 illegal immigration, end chain migration & cancel the visa lottery.” (Exhibit K)

17 90. On January 16, 2018, President Trump tweeted, “[W]e need to keep America safe,

18 including moving away from a random chain migration and lottery system, to one that is merit-
19 based.” (Exhibit L)
20 91. On January 25, 2018, the White House issued a fact sheet entitled, “White House
21 Framework on Immigration Reform & Border Security,” where it stated one of the
22 administration’s goal is to “[p]romote nuclear family migration by limiting family sponsorship
23 to spouses and minor children only (for both Citizens and LPRs), ending extended-family chain
24 migration.” (Exhibit M)
25 COMPLAINT - 26

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 27 of 45

1 92. Defendants have changed the terms of the travel ban that they themselves wrote by

2 categorically limiting the number of visa applicants who can request consideration for a waiver

3 of the travel ban. Defendants are therefore bypassing Congress and the INA and working to 4 effectively end family reunification in the banned countries. 5

6

7

8

VI. Existing guidance from the State Department is inadequate to guide either

9

consular officers or visa applicants with respect to the Proclamation’s waiver

process 10

93. The guidance provided by the Proclamation itself is minimal, and the Proclamation 11

directs the Secretary of State and the Secretary of Homeland Security to develop specific 12

13 guidance for consular officers and visa applicants on how the waivers provision will be

14 implemented. 82 Fed. Reg. at 45168; see Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir.

15 2017) (“The Government … has offered no explanation for how these [discretionary waiver]

16 provisions would function in practice: how would the "national interest" be determined, who

17 would make that determination, and when?”).

18 94. After the Supreme Court’s lifting of the stays on the Proclamation, the State Department
19 issued guidance regarding its immediate implementation on its website. Dep’t of State, New
20 Court Order on Presidential Proclamation (Dec. 4, 2017), https://travel.state.gov/content/travel/
21 en/News/visas-news/new_court_orders_on_presidential_proclamation.html. (Exhibit N) The
22 guidance indicates that consular officers will review eligibility for a waiver at the time of an
23 applicant’s interview. Id.
24

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 28 of 45

1 95. But the State Department’s guidance does not offer definitions of key terms from the

2 Proclamation’s waivers provision like “undue hardship” or “significant contacts” or any

3 explanation for how applicants can show that their entry into the United States would be in the
4 national interest.
5 96. This lack of clarity leaves applicants guessing as to what the standards of eligibility are 6
for waivers—whether their hardships are undue, whether their contacts are significant—and 7
presumably also leaves consular officers guessing as to which applicants are eligible. 8
97. The State Department’s guidance does provide a definition of “close family member,” 9
and indicates that the definition for purposes of the Proclamation is the same as the definition 10
for “immediate relative” that can be found elsewhere in immigration law. See 8 U.S.C. 11
§ 1151(b)(2)(A)(i). 12
13 98. But according to an email received by counsel from the U.S. Consulate General in
14 Vancouver, Canada, visa applicants who seek to be reunited with a parent in the U.S. are
15 ineligible for consideration of a waiver if they are over 21 years old, the opposite of the

16 definition under the rest of immigration law. The email exchange reads in relevant part as

17 follows:

18

COUNSEL: [I]t appears as though my client, [REDACTED], has

been denied the opportunity to request a waiver of the presidential

19

proclamation.

20

According to the presidential proclamation itself and guidance on

21

the State Department's website, foreign nationals who seek to

enter the US to be reunited with a close family member (e.g.

22

spouse, child, or parent) are eligible for requesting a waiver.

23

My client is the daughter of a United States citizen. Could you

kindly explain why your office has denied my client the

24

opportunity to request a waiver of the presidential proclamation?

25 COMPLAINT - 28

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 29 of 45

1

CONSULATE: A consular officer may issue a visa based on a

listed waiver category to nationals of countries identified in the

2

Presidential Proclamation on a case-by-case basis.

3

It has been determined that your client, [REDACTED], does not

meet the definition of close family as she is over 21 years of age. 4

5

This decision cannot be appealed.

6 (Exhibit O)

7 99. Defendants have thus limited the meaning of “close family member” to suit their

8 intended goal of broadly denying waivers to applicants from banned countries.

9 100. The guidance also does not explain how consular officers should consider the eligibility

10 for a waiver of applicants, like several Plaintiffs, who were interviewed prior to implementation
11 of the Proclamation but were in administrative processing during the periods when the
12 Proclamation was being implemented.
13 101. Nor does the guidance explain how applicants stuck in administrative processing should
14 handle the situation. Applicants are thus at a loss for what to do—they do not know whether
15 they are supposed to contact the embassy or whether the embassy will contact them; whether
16 they should wait until administrative processing is completed or request a waiver while their
17 cases are still pending administrative processing. Applicants fear that, if they contact the
18 embassy, attention will be brought to their cases, which will result in an immediate denial due to
19 20 the Proclamation. This fear is not unfounded: counsel have personal knowledge of cases in
21 which this occurred.
22 102. Visa applicants have stated that when they attend interviews at embassies and consulates

23 abroad, the officers inform them that waivers are processed in Washington, D.C. This undercuts

24 the State Department’s guidance which states that visa applicants’ eligibility for waivers will be

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 30 of 45

1 determined by the consular officer at the time of the interview and further muddies the water.

2 Applicants do not even know who is adjudicating their requests for waivers, much less what the

3 standards are to qualify for one.
4 103. In a letter to two U.S. senators published on March 6, 2018, the State Department issued
5 more guidance on the waiver process. (Exhibit B) This guidance contradicts both the 6
Proclamation and the State Department’s previous guidance on the process. 7
104. For example, the letter states that “the applicant’s travel may be considered in the 8
national interest if the applicant demonstrates to the consular officer’s satisfaction that a U.S. 9
person or entity would suffer hardship if the applicant could not travel until after visa 10
restrictions … are lifted.” Id. Neither the Proclamation nor the guidance from the State 11
Department’s website ever make any mention of visa applicants being required to show that 12
13 U.S. citizens or entities would suffer hardship if the applicant were not granted a visa, which
14 belies the State Department’s contention that “[t]he Department’s worldwide guidance to
15 consular officers regarding waivers is drawn directly from the Proclamation.” Id.

16 105. It is thus clear that Defendants are making things up as they go along, saying one thing

17 on government websites, another thing to visa applicants and attorneys, and yet another thing

18 when a U.S. senator is doing the inquiring. 19

20

VII. Denial letters issued by consular officers reveal Defendants’ policy and practice

21

of refusing to give applicants due consideration for waivers

22 106. Defendants provided the consulates and embassies abroad with a template letter to give

23 to visa applicants when they have been denied a visa pursuant to the Proclamation. The letter

24 has two options for a consular officer to select: (1) “Taking into account the provisions of the

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 31 of 45
1 Proclamation, a waiver will not be granted in your case”; or (2) “The consular officer is
2 reviewing your eligibility for a waiver under the Proclamation.” (Exhibit P)
3 107. This begs the question: why are consular officers not considering all applicants for a
4 waiver? And on what basis does an officer decide in the first instance whether an applicant 5 should be considered for a waiver at all? 6
108. These form letters betray Defendants’ policy and practice of judging applicants’ 7
eligibility for waivers based not on their personal circumstances or on a consideration of the 8
guidance provided by the Proclamation, but instead on applicants’ nationality and country of 9
origin. 10
109. These form letters also contradict the guidance found on the State Department website. 11
See Dep’t of State, New Court Order on Presidential Proclamation (Dec. 4, 2017), 12 13 https://travel.state.gov/content/travel/en/News/visasnews/new_court_orders_on_presidential_pr
14 oclamation.html. That guidance tells officers that if they are faced with a visa applicant who is
15 subject to the Proclamation, they will determine whether the applicant “may be eligible for a
16 waiver under the Proclamation and therefore issued a visa.” The guidance goes on to state
17 explicitly that, “[a] consular officer will carefully review each case to determine whether the
18 applicant is affected by the Proclamation . . . and, if so, whether the applicant qualifies for an
19 exception or a waiver.” Id. 20 110. The fact that the form letters reveal that officers are not considering all applicants for 21
waivers, and that the letters are inconsistent with the guidance given by State Department which 22
explicitly tells officers to consider all applicants, shows that Defendants are making decisions 23
based on inappropriate considerations of country of origin and nationality and not on valid and 24
good faith considerations of applicants’ personal circumstances. 25
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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 32 of 45

1

2

VIII. Plaintiffs and proposed class members have suffered and continue to suffer

irreparable harm because of the flawed waiver process 3

111. Defendants’ reckless and irresponsible implementation of the Proclamation, and their 4

5 policy and practice of refusing to consider in good faith the facts of individual cases, has caused

6 significant and irreparable harm to Plaintiffs and proposed class members.

7 112. Mr. Vazehrad has suffered a loss of consortium as he has been deprived and continues to

8 be deprived of the opportunity to be with his fiancée, Ms. Motavaliabyazani. Both Plaintiffs are

9 suffering ongoing severe emotional and mental distress as a result of their prolonged separation.

10 Because the Proclamation made the travel ban of indeterminate length, the separation may well
11 be permanent. The couple have also paid thousands of dollars in attorney’s fees, filing fees,
12 travel costs, and medical fees, which they will never recoup.
13 113. Mr. Babalou is at risk of losing a $500,000 investment in the United States. From his
14 home in Iran, he is unable to fulfill the duties assigned to him as part of running a business,
15 unable to oversee the U.S. citizens he has employed, and therefore unable to effectively grow
16 his business and continue contributing to the U.S. economy. In addition to the large investment
17 he made into a U.S. business, Mr. Babalou has incurred substantial incidental costs over the last
18 seven years, including $50,000 paid to a regional center for assistance with overseeing his
19 20 investment and thousands of dollars more in attorney’s fees, filing fees, travel costs, and
21 medical fees. These are costs that Mr. Babalou can never recoup.
22 114. Ms. Mehrabi Mohammad Abadi is also at risk of losing a $500,000 investment in the

23 United States. From her home in Iran, she is unable to fulfill the duties assigned to her as part of

24 running a business, unable to oversee the U.S. citizens she has employed, and therefore unable

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Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 33 of 45
1 to effectively grow her business and continue contributing to the U.S. economy. In addition to
2 her large investment, Ms. Mehrabi Mohammad Abadi incurred substantial incidental costs,
3 including $50,000 paid to a regional center for assistance with overseeing her investment and
4 thousands of dollars more in attorney’s fees, filing fees, travel costs, and medical fees. These are 5 costs that Ms. Mehrabi Mohammad Abadi will never recover. 6
115. Dr. Afshar Arjmand risks losing a once-in-a-lifetime research and teaching opportunity 7
at the University of California, San Diego, one of the world's leading public research 8
universities. This despite the fact that Dr. Afshar Arjmand was deemed by USCIS to be 9
“extraordinary”—and it would thus clearly be in the U.S. national interest to allow him to 10
enter—and despite the university’s persistence and assistance in the matter borne of its desire to 11
secure Dr. Afshar Arjmand and his prodigious talent and expertise for its faculty. In addition to 12 13 missing out on this incredible opportunity, he has also paid thousands of dollars in attorney’s
14 fees, filing fees, travel costs, and medical fees, which he will be unable to recoup.
15 116. Dr. Heidaryan risks losing the opportunity to use his hard-won skills and experience,
16 deemed “extraordinary” by USCIS, to conduct research and teach in his area of expertise—
17 chemical engineering—in America’s top tier universities. Relatedly, Dr. Heidaryan risks losing
18 the opportunity to take advantage of the substantial resources American universities have to
19 more effectively further his research and, thus, the opportunity to contribute his expertise to the 20 United States. He has also paid thousands of dollars in attorney’s fees, filing fees, travel costs, 21
and medical fees, which he cannot recover. 22
117. Ms. Maharlouei also risks losing the opportunity to conduct research in the United States 23
in her field of medical sciences, despite the fact that USCIS already deemed her research to be 24
in the U.S. national interest. Ms. Maharlouei risks losing the opportunity to take advantage of 25
COMPLAINT - 33

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 34 of 45
1 American universities’ substantial resources to more effectively further her research and, thus,
2 the opportunity to contribute her substantial expertise to the United States. She has also paid
3 thousands of dollars in attorney’s fees, filing fees, travel costs, and medical fees, which she will
4 be unable to recoup. 5 118. Ms. Hajiheydari risks losing the opportunity to conduct research in the United States, 6
despite the fact that USCIS already determined that her work is in the U.S. national interest. Ms. 7
Hajiheydari risks losing the opportunity to take advantage of American universities’ substantial 8
resources to more effectively further her research and, thus, the opportunity to contribute her 9
expertise to the United States. She has also paid thousands of dollars in attorney’s fees, filing 10
fees, travel costs, and medical fees, for herself and three family members, all of which she will 11
be unable to recoup. 12 13 119. Plaintiff Afrooz Kharazmi and Plaintiff Afshan Alamshah Zadeh waited in line for more
14 than 12 years for Ms. Alamshah Zadeh’s priority date to become current, enduring years of
15 hardship, separation, and sacrifice. Ms. Alamshah Zadeh’s entire family are American citizens
16 residing in the United States, and she is therefore at risk of permanently losing the ability to visit
17 any member of her family and being left permanently alone in Iran. The sisters have also paid
18 thousands of dollars in attorney’s fees, filing fees, travel costs, and medical fees, which they
19 cannot recover. 20 120. Plaintiff Bamshad Azizi and his parents, Roghayeh and Hojjatollah Azizikoutenaei, have 21
suffered and are suffering significant emotional distress at their ongoing separation. Mrs. 22
Azizikoutenaei has been suffering from cancer for the last year and Mr. and Ms. Azizikoutenaei 23
both recently underwent surgeries. All the family wants is to be together, but, because the travel 24
ban is of an indeterminate length, and Mr. and Mrs. Azizikoutenaei are quite weak after their 25
COMPLAINT - 34

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 35 of 45
1 illnesses and surgeries, they are unsure that they will ever get to be reunited. This prospect is
2 also causing Mr. Azizi and his parents ongoing and significant emotional distress. The family
3 have paid thousands of dollars in attorney’s fees, filing fees, and travel costs, which they will be
4 unable to recoup. 5 121. Plaintiff Clyde Jean Tedrick II and Plaintiff Mitra Farnoodian-Tedrick cancelled their 6
wedding and lost $3,976.76 because of Defendants’ denial of Plaintiff Farajollah Farnoudian 7
and Plaintiff Farangis Emami’s case. They have all suffered considerable stress in connection 8
with the wedding and have lost, perhaps permanently, an experience that everyone should get to 9
enjoy: celebrating a wedding with one’s parents. They have also paid thousands of dollars in 10
attorney’s fees, filing fees, and travel costs, which they cannot recoup. 11
122. Plaintiff Tannaz Toloubeydokhti has suffered significant emotional distress as she has 12 13 been deprived of the opportunity to have her parents, Mr. Fathollah Tolou Beydokhti and Ms.
14 Behnaz Malekghaeini present during her pregnancy. They are also at risk of missing the birth of
15 Ms. Toloubeydokhti’s child. These experiences are ones none of them can ever get back and this
16 loss is irreparable. Ms. Toloubeydokhti is also at risk of enduring a significant financial burden,
17 as she had hoped that her parents would assist her with childcare for her newborn. She may have
18 to seek hired help, an expensive prospect. Ms. Toloubeydokhti and her parents have also paid
19 thousands of dollars in attorney’s fees, filing fees, and travel costs, which they will be unable to 20 recoup. 21
123. Plaintiff Maral Charkhtab Tabrizi has suffered significant emotional distress as she was 22
deprived of the opportunity to have her parents, Plaintiffs Zahra Rouzbehani and Bahram 23
Charkhtab Tabrizi, present during her pregnancy. She also suffered increased physical pain and 24
suffering, as she has a connective tissue disorder with associated pain that would have been 25
COMPLAINT - 35

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 36 of 45
1 lessened with the assistance of her parents. Additionally, Ms. Rouzbehani and Mr. Charkhtab
2 Tabrizi missed the birth of their first grandchild. This is an experience none of them can never
3 get back and their loss is therefore irreparable. Ms. Charkhtab Tabrizi is also at risk of enduring 4 a significant financial burden, as she had hoped that her parents would assist her with childcare 5 for her newborn. Because Ms. Charkhtab Tabrizi cannot take paid time off, without her parents’ 6
assistance, she will have to increase the amount of time she takes off, thereby losing far more 7
money than she would have had her parents been present. Her unpaid leave, potentially 8
extended due to Ms. Rouzbehani and Mr. Charkhtab Tabrizi’s absence, may also result in the 9
cancellation of her job contract and the loss of her medical benefits, harms that would be 10
irreparable. Ms. Charkhtab Tabrizi and her parents have also paid thousands of dollars in 11
attorney’s fees, filing fees, and travel costs, which they will be unable to recoup. 12 13 124. Applicants are told in their denial letters they can apply for visas again. But Defendants 14 have no protocols in place and, despite having more than five months to do so, have issued no
15 guidance to officers or applicants. Thus, applicants will have to pay application fees, buy plane
16 tickets, make hotel reservations, and pay, again, all of the costs associated with applying for a
17 visa and traveling to a U.S. embassy to attend yet another interview with no hope of achieving a
18 different result. 19 125. As a result, Plaintiffs’ rights continue to be violated and they continue to be separated 20 from their families, jobs, research, and investments on the basis of the unlawful and 21
unconstitutional waiver process. 22
23 CLASS ALLEGATIONS
24
25 COMPLAINT - 36

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1 126. Individual Plaintiffs bring this action as a class action pursuant to Federal Rules of Civil

2 Procedure 23(b)(1) and (b)(2), on behalf of themselves and all other persons similarly situated.

3 A class action is proper because the class is so numerous that joinder of all members is
4 impractical, this action involves questions of law and fact common to the class, Plaintiffs’
5 claims are typical of the claims of the class, Plaintiffs will fairly and adequately protect the 6
interests of the class, and Defendants have acted on grounds that apply generally to the class, so 7
that final injunctive relief or corresponding declaratory relief is appropriate with respect to the 8
class as a whole. 9
127. In addition to the named plaintiffs, there are many other similarly situated individuals 10
who have been denied waivers and visas pursuant to the Proclamation. Each of these similarly 11
situated individuals is entitled to bring a complaint for declaratory and injunctive relief to 12
13 prohibit Defendants’ policy, pattern, and practice of denying waivers and visas to applicants
14 from banned countries without a good faith consideration of their applications.
15 128. The proposed class is defined as follows:

16

All petitioners and beneficiaries of immigrant or nonimmigrant

visa petitions that were refused or will be refused pursuant to the

17

Proclamation without the opportunity to request a waiver of the

Proclamation or that were refused or will be refused despite

18

clearly falling under the examples provided by the Proclamation

for circumstances under which a waiver may be appropriate. All

19

individuals who were or will be considered for a waiver of the

20

Proclamation and refused a waiver due to Defendants’ narrow and incorrect definition of a “close family member.”

21 129. The proposed class meets the requirements of Rule 23(a)(1) because it is so numerous

22 that joinder of all members is impracticable. The number of individuals who have been wrongly
23 denied waivers is not known with precision by Plaintiffs but is easily ascertainable by
24 Defendants. On any given day, thousands of visa applications are adjudicated at embassies and
25
COMPLAINT - 37

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 38 of 45
1 consulates abroad. As such, more individuals will become class members in the future, as
2 Defendants continue to deny applicants a good faith opportunity to request a waiver of the
3 Proclamation. The members of the class are ascertainable and identifiable by Defendants.
4 130. The proposed class meets the commonality requirements of Rule 23(a)(2) because all 5 proposed class members have been or will be subject to Defendants’ common policy, pattern, 6
and practice of refusing to consider applicants for waivers of the Proclamation. Plaintiffs and the 7
proposed class share the same legal claims, which include, but are not limited to: whether 8
Defendants’ refusal to consider applicants for waivers in good faith and failure to develop 9
standards or guidance for consular officers and visa applicants to follow violate the APA, the 10
INA, and the Due Process Clause of the Fifth Amendment. 11
131. Similarly, the proposed class meets the typicality requirements of Rule 23(a)(3) because 12 13 the claims of the representative Plaintiffs are typical of the claims of the class as a whole.
14 Plaintiffs, as with the class they seek to represent, are all individuals who have been or will be
15 denied the chance to request a waiver of the Proclamation and who have been or will be stymied
16 in their attempts to apply by a dearth of guidance from Defendants.
17 132. The adequacy requirements of Rule 23(a)(4) are also met. Plaintiffs know of no conflict
18 between their interests and those of the proposed class. Plaintiff seek the same relief as other
19 members of the class, namely that the Court (a) order Defendants to immediately cease their 20 unlawful policy and/or practice of refusing to receive or consider requests for waivers of the 21
Proclamation; (b) retract visa denials due to the arbitrary and capricious nature of Defendants’ 22
decision to implement the ban without appropriate guidance in place; (c) provide clear guidance 23
that defines key words and sets clear standards for consular officers and applicants to use; and 24
(d) abide by the terms of the Proclamation and consider case-by-case waivers in good faith. In 25
COMPLAINT - 38

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 39 of 45

1 defending their own rights, the individual Plaintiffs will defend the rights of all class members

2 fairly and adequately. Plaintiffs are represented by counsel with deep knowledge of immigration

3 law and extensive experience litigating class actions and complex cases. Counsel have the
4 requisite level of expertise to adequately prosecute this case on behalf of Plaintiffs and the
5 proposed class.
6 133. The proposed class satisfies Rule 23(b)(2) because Defendants have acted on grounds
7 generally applicable to the class in refusing to fairly adjudicate waiver requests. Thus, final
8 injunctive and declaratory relief is appropriate with respect to the class as a whole.
9

10

11

CAUSES OF ACTION 12

13

COUNT ONE

(Violation of Administrative Procedure Act)

14 134. Plaintiffs repeat and incorporate by reference each and every allegation contained in the
15 preceding paragraphs as if fully set forth herein.
16

135. The APA prohibits federal agency action that is “arbitrary, capricious, an abuse of 17

discretion, or otherwise not in accordance with law,” or is conducted “without observance of 18

19 procedure required by law.” 5 U.S.C. § 706(2).

20 136. The INA prohibits discrimination in the issuance of immigrant visas based on

21 nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). The INA’s

22 implementing regulations specify the procedures for issuance or denial of a visa. 22 C.F.R.

23 42.81; 22 CFR 41.121; 22 C.F.R. § 40.6. Under these regulations, a denial must be based on

24 legal grounds and made in conformance with the INA.
25 COMPLAINT - 39

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 40 of 45
1 137. In denying waivers and visas to Plaintiffs and proposed class members based on their
2 country of origin or nationality, Defendants have acted arbitrarily, capriciously, and not in
3 accordance with the INA. 4 138. Defendants’ actions have resulted in the indefinite—and possibly permanent— 5 separation of U.S. citizens and U.S. lawful permanent residents from their family members in 6
contravention of Congress’ purpose in enacting the INA: promoting family reunification. This 7
conduct is not in accordance with the INA. 8
139. Defendants have discriminated against Plaintiffs and proposed class members based on 9
the proscribed grounds in implementing the Proclamation’s waivers provisions. In this respect, 10
they have failed to use the discretion granted them by law. They are therefore in violation of the 11
APA. 12 13 140. Defendants have a non-discretionary duty under the Proclamation to develop standards 14 to guide visa applicants in compiling their applications for waivers and for consular officers to
15 reference in adjudicating waiver and visa applications. See 82 Fed. Reg. at 45168. Defendants
16 have failed to promulgate such guidance and have nonetheless proceeded in denying waivers
17 and visas. Defendants have also failed to follow existing procedures prescribed by the INA and
18 implementing regulations and the Foreign Affairs Manual in issuing these denials. In failing to 19 develop or follow any procedures, instead basing their decisions on applicants’ country of origin 20 or nationality, Defendants have conducted themselves arbitrarily and capriciously and in 21
contravention of the Proclamation, the INA, and the U.S. Constitution, and they have thus 22
violated the APA. 23
24
25 COMPLAINT - 40

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 41 of 45

1 141. Defendants’ violations of these laws have harmed and continue to harm Plaintiffs and

2 proposed class members by indefinitely denying them access to their families and to economic

3 and research opportunities. 4

5

COUNT TWO

6

(Violation of Due Process Clause of the Fifth Amendment)

7 142. Plaintiffs repeat and incorporate by reference each and every allegation contained in the

8 preceding paragraphs as if fully set forth herein.

9 143. The Due Process Clause of the Fifth Amendment of the U.S. Constitution protects all

10 individuals from the government denying equal protection of the law.
11 144. The blanket denials of visas to applicants from banned countries without the opportunity
12 to argue for a waiver from the Proclamation, together with statements made by Defendants
13 concerning their intent and the application of the travel ban, makes clear that Defendants are
14 targeting individuals for discriminatory treatment based on their country of origin or nationality,
15 without any lawful justification.
16 145. Defendants’ implementation of the waivers provision has a disparate impact on
17 applicants from certain countries and of certain nationalities.
18 146. Defendants’ discriminatory implementation of the waivers provisions serves no
19 20 compelling government interest and is not narrowly tailored.
21 147. Defendants’ conduct violates the Fifth Amendment’s guarantee of equal protection.
22 148. The Due Process Clause of the Fifth Amendment also prohibits the federal government

23 from depriving individuals of their fundamental rights without due process of law, i.e.,

24 substantive due process.

25 COMPLAINT - 41

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 42 of 45
1 149. Plaintiffs’ fundamental rights include their right to the "integrity of the family unit."
2 Stanley v. Illinois, 405 U.S. 645, 651 (1972).
3 150. The implementation of the waiver provision of the Proclamation directly and 4 substantially infringes on Plaintiffs’ fundamental rights. 5 151. The Due Process Clause forbids Defendants from infringing on Plaintiffs’ fundamental 6
rights unless the infringement is narrowly tailored to serve a compelling governmental interest. 7
152. As applied, the Proclamation’s waivers provision fails this test. It is not narrowly 8
tailored to protect national security interests—it operates to block nearly all persons from 9
banned countries from entry into the United States, regardless of their relationship to violence or 10
terrorism. It is both under- and over-inclusive. 11
153. The Due Process Clause of the Fifth Amendment guarantees procedural due process 12 13 rights, e.g., the right to fair and impartial processes, even to foreign nationals. Those due process 14 rights are implicated by the deprivation of a fundamental liberty interest, e.g., family integrity,
15 and they may also arise from statute. See Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004)
16 (“The due process afforded aliens stems from those statutory rights granted by Congress and the
17 principle that ‘minimum due process rights attach to statutory rights.’”) (quoting Dia v.
18 Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003). The INA and its implementing regulations mandate
19 various procedures for the processing of visas, procedures which Defendants have failed to 20 follow. 21
154. In refusing to consider Plaintiffs’ applications in good faith, Defendants have violated 22
Plaintiffs’ Fifth Amendment right to equal protection under the law and to substantive and 23
procedural due process. 24
25 COMPLAINT - 42

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 43 of 45

1 155. Defendants’ violations of these laws have harmed and continue to harm Plaintiffs and

2 proposed class members by indefinitely denying them access to their families and economic and

3 research opportunities. 4

5

COUNT THREE

6

(Writ of Mandamus)

7 156. Plaintiffs repeat and incorporate by reference each and every allegation contained in the

8 preceding paragraphs as if fully set forth herein.

9 157. Defendants owe Plaintiffs and class members a duty to adjudicate in good faith their
10 requests for waivers of the Proclamation. The adjudication of waivers and development of
11 guidance on such adjudication are clear, non-discretionary duties imposed upon Defendants by
12 the INA and implementing regulations and by section 3 of the Proclamation.
13 158. Defendants are unlawfully ignoring Plaintiffs’ requests for waivers of the Proclamation
14 and have failed to carry out the adjudicative and administrative functions delegated to them by
15 law with regard to Plaintiffs’ cases.
16 159. Defendants’ refusal to consider applicants’ eligibility for waivers on a case-by-case basis
17 or develop meaningful guidance is, as a matter of law, arbitrary, capricious, and not in
18
19 accordance with the law and is thus violative of the APA.
20 160. Defendants’ policy and practice of denying visa applications and waivers to people of a
21 certain country of origin or nationality violates Plaintiffs’ right against discrimination under the

22 INA and implementing regulations.

23 161. Defendants’ discriminatory behavior in issuing blanket denials to visa applicants from

24 banned countries without consideration of their personal circumstances violates Plaintiffs’ Fifth
25 COMPLAINT - 43

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 44 of 45

1 Amendment rights to equal protection under the law and substantive and procedural due

2 process.

3 162. Because there are no other adequate remedies available to Plaintiffs, mandamus is
4 appropriate. See 5 U.S.C. § 704.
5 163. Defendants’ violation of the law in denying Plaintiffs the opportunity to present waiver
6 applications as a matter of course, and thereby refusing to consider waivers on a case-by-case
7 basis, is substantially unjustified. Plaintiffs are, therefore, entitled to reasonable attorney’s fees
8 under the Equal Access to Justice Act, 28 U.S.C. § 2412.
9

10 PRAYER FOR RELIEF
11

WHEREFORE, Plaintiffs pray for the following relief: 12

13

1. A temporary restraining order and/or preliminary and permanent injunction enjoining

14

Defendants from denying visa applications due to the Proclamation;

15

2. An order requiring Defendants to immediately retract all visa denials due to the

16

Proclamation and notify applicants that they may apply for a waiver of the Proclamation

17

without submitting a new visa application, paying associated fees, and attending another

18

interview;

19

3. An order requiring Defendants to fulfill their duties by providing clear and consistent

20

guidelines for the waiver process, including definitions of key terms, standards for

21 applicants to meet, and examples of documents needed to meet those standards;

22 4. An order requiring Defendants to abide by the terms of the Proclamation and consider
23 applicants’ waiver applications on a case-by-case basis without discriminating based on
24 applicants’ country of origin or nationality;
25
COMPLAINT - 44

Case 3:18-cv-01587-JD Document 1 Filed 03/13/18 Page 45 of 45

1

5. An order declaring Defendants’ refusal to consider waiver applications in good faith as

2

violative of the APA, the INA, and the Due Process Clause of the Fifth Amendment;

3

6. An order awarding Plaintiffs costs of suit and reasonable attorney’s fees under the Equal

4

Access to Justice Act and any other applicable law;

5

7. Such other and further relief as this Court deems equitable, just, and proper.

6 DATED: March 13, 2018

7 Kent, Washington
8 Respectfully Submitted,
9
/s/ Luis Cortes Romero 10 IMMIGRANT ADVOCACY & LITIGATION
CENTER, PLLC 11 LUIS CORTES ROMERO (CA SBN 310852)
lcortes@ia-lc.com 12 ALMA DAVID* (CA SBN 257676)
13 *Pro hac vice forthcoming adavid@ia-lc.com

/s/ Shabnam Lotfi LOTFI LEGAL LLC SHABNAM LOTFI* (WI SBN 1090020) shabnam@lotfilegal.com VERONICA SUSTIC* (WI SBN 1093862) *Pro hac vice forthcoming veronica@lotfilegal.com

14 /s/Mark D. Rosenbaum
15 PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940)
16 mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431)
17 jlondon@publiccounsel.org

18 Attorneys for Plaintiffs 19

20

21

22

23

24

25 COMPLAINT - 45

 
 Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 1 of 68

1 SIRINE SHEBAYA (pro hac vice)

NIMRA AZMI (pro hac vice)*

2 JOSEPH SAEI (CA SBN 321341)*

MUSLIM ADVOCATES 3 P.O. Box 34440

Washington, DC 20043 4 Telephone: (202) 897-2622

5

Facsimile: (202) 508-1007 sirine@muslimadvocates.org

6 nimra@muslimadvocates.org yusuf@muslimadvocates.org

SHABNAM LOTFI (pro hac vice) VERONICA SUSTIC (pro hac vice) LOTFI LEGAL, LLC P.O. Box 64 Madison, WI 53701 Telephone: (608) 259-6226 Facsimile: (208) 977-9974 shabnam@lotfilegal.com veronica@lotfilegal.com

7 Attorneys for Plaintiffs

8 *Not admitted to practice in DC; supervised by members of the DC bar

9

UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 11

12

13 Tannaz Toloubeydokhti; Fathollah Tolou Beydokhti; Behnaz Malekghaeini; Afrooz Kharazmi; Afshan

14 Alamshah Zadeh; Najib Adi; Ismail Alghazali; Malik Almathil; Khalil Ali Nagi; Hezam Alarqaban;

15 Abdurraouf Gseaa; Sudi Wardere; Khadija Aden; Soheil Vazehrad; Atefehossadat Motavaliabyazani;

16 Bamshad Azizi; Roghayeh Azizikoutenaei;

Hojjatollah Azizikoutenaei; Clyde Jean Tedrick II;

17 Mitra Farnoodian-Tedrick; Farajollah Farnoudian;

Farangis Emami; Maral Charkhtab Tabrizi; Zahra 18 Rouzbehani; Bahram Charkhtab Tabrizi; Maryam

Mozafari; Mohammad Mehdi Mozaffary; Behnam 19 Babalou; Hoda Mehrabi Mohammad Abadi; Mahdi

20

Afshar Arjmand; Ehsan Heidaryan; Najmeh Maharlouei; Nastaran Hajiheydari; Mohamad

21 Hamami,

22

Plaintiffs,

Civil Case No. 3:18-cv-01587
SECOND AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND FOR WRIT OF MANDAMUS

23

-against-

24 KIRSTJEN NIELSEN, in her official capacity as
Secretary of Homeland Security; U.S. 25
SECOND AMENDED COMPLAINT - 1 26

27

28

Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 2 of 68

1

DEPARTMENT OF HOMELAND SECURITY; 2 MICHAEL R. POMPEO, in his official capacity as

3

Secretary of State; U.S. DEPARTMENT OF STATE; KEVIN K. MCALEENAN, in his official

4 capacity as Commissioner of U.S. Customs and Border Protection; U.S. CUSTOMS AND BORDER

5 PROTECTION; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and

6 Immigration Services; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

7

Defendants. 8

9

INTRODUCTION

10 1. Presidential Proclamation 9645 issued on September 24, 2017 (“the Proclamation”)

11 prohibits the entry of all immigrants and certain categories of non-immigrants for nationals of Iran,
12 Libya, Somalia, Syria, and Yemen.1 The Proclamation provides for case-by-case waivers from the
13 ban for individuals who can “demonstrate” that denial of entry “would cause undue hardship, . . .
14 would not pose a threat to national security, . . . and would be in the national interest.” Ex. A,
15 Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017), § 3(c). The Proclamation
16
provides several examples of circumstances in which waivers may be appropriate, and further 17
18 requires the Secretary of State and the Secretary of Homeland Security to adopt guidance

19 establishing when waivers may be appropriate for foreign nationals who would otherwise be

20 banned.

21 2. To date, however, no meaningful guidance has been issued or publicly promulgated. The

22 agencies do not appear to have established—and certainly have not provided information to the

23

24 1 Under the terms of the Proclamation, all Syrian nationals are banned; all Libyan and Yemeni nationals seeking
immigrant or non-immigrant B1/B2 visas are banned; all Iranian nationals except non-immigrants seeking F, M, or J
25 visas are banned; and all Somali nationals seeking immigrant visas are banned.
SECOND AMENDED COMPLAINT - 2 26

27

28

Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 3 of 68

1 public about—waiver application procedures that are accessible to visa applicants. To the extent

2 guidance has been issued, it has been confusing, contradictory, in conflict with the terms of the

3 Proclamation, or seemingly designed to result in the denial of meritorious applications. Such

4 guidance also has failed to provide for a mechanism by which individuals may “demonstrate”—

5 as the Proclamation says they must—that they meet the eligibility criteria described in the

6 Proclamation. Id.

7 3.

Immediately after the Proclamation first went fully into effect in December 2017,

8

thousands of individuals, including many plaintiffs in this action, reported receiving blanket,

9

boilerplate denials of both visas and waivers, most before ever having had an opportunity to apply 10

for a waiver or to “demonstrate” their eligibility. Individuals denied waivers include those who 11

12 had previously been informed by U.S. consular officials that their visas had been approved. Others

13 were informed that their eligibility for a waiver is being considered, but have been waiting for

14 months or more than a year without a decision in their cases. Both public reports and the latest

15 government statistics illustrate that the number of waiver grants has been “a minuscule percentage”

16 of those eligible for visas. Trump v. Hawaii, 585 U.S. ___, 138 S. Ct. 2392, 2431 (2018) (Breyer,

17 J., dissenting). By all indications, the waiver process has been a fraud. See, e.g., Ex. B, Decl. of

18 Christopher Richardson, Esq. (“Richardson Decl.”), Alharbi v. Miller, No. 1:18-cv-02435
19 (E.D.N.Y. filed Apr. 25, 2018), ECF No. 24-2.
20 4. Plaintiffs and putative class members are U.S. citizens, lawful permanent residents, and
21 Iranian, Libyan, Somali, Syrian, and Yemeni foreign nationals whose visa applications have been
22 denied or stalled by the government’s failure to provide fair and meaningful access to case-by-
23 case waivers. Many have approved visa petitions for their family members; others have family
24 members who have applied for immigrant or non-immigrant visas and been summarily denied or
25 SECOND AMENDED COMPLAINT - 3
26

27

28

Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 4 of 68

1 indefinitely stalled; and others have applied for business-related or extraordinary ability visas to

2 the United States. All seek entry to the United States to be reunited with their families or because

3 of significant business or professional relationships in the United States.

4 5. Based upon all available data and information, Defendants have adopted a policy or

5 practice of not instituting an orderly waiver process through which individuals may “demonstrate,”

6 as stated in the Proclamation, their eligibility for a case-by-case waiver. Ex. A, § 3(c).

7 6.

Defendants have further adopted a policy or practice of not providing information about

8

the waiver process and have thereby hindered Plaintiffs’ and their family members’ ability to make

9

a showing that they meet the relevant criteria. 10

7. 11

Defendants have also adopted a policy or practice of denying or stalling virtually all visa

12 issuance and waiver grants under the Proclamation, and have not given consular officials the

13 discretion to grant any waivers.

14 8. As set forth below, the government’s failure to provide a meaningful, orderly, and

15 accessible process through which individuals covered by the ban can demonstrate their eligibility

16 for a waiver violates the Administrative Procedure Act (“APA”) and Plaintiffs’ right to due process

17 under the Fifth Amendment to the U.S. Constitution.

18 9. Accordingly, Plaintiffs request that this Court order Defendants to provide clear guidance
19 and an orderly process by which applicants may demonstrate their eligibility for a waiver; evaluate 20 whether applicants previously denied waivers under an unlawful policy should be reconsidered for 21
a waiver grant; act on waivers that have been pending for an unreasonable period of time; and give 22
full consideration for case-by-case waivers to all visa applicants as set forth in the Proclamation. 23

24

25
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1

CLASS DEFINITION

2 10. Plaintiffs bring this case as a class action under Federal Rules of Civil Procedure 23(a) and

3 (b), on behalf of the following two subclasses: (i) the “Family Member Class” and (ii) the “Visa

4 Applicant Class.”
5 11. The Family Member Class is comprised of United States citizens and lawful permanent
6 residents with approved family-based visa petitions or whose family members have applied for
7 visa categories covered by the ban, and whose family members have been or will be refused
8 pursuant to the Proclamation without an opportunity to apply for and be meaningfully considered
9 for a waiver or are awaiting adjudication of a waiver.
10 12. The Visa Applicant Class is comprised of Iranian, Libyan, Somali, Syrian, and Yemeni
11
12 nationals who have applied for immigrant or nonimmigrant visas that have been or will be refused
13 pursuant to the Proclamation without the opportunity to apply for and be meaningfully considered

14 for a waiver or who are awaiting adjudication of a waiver.

15

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

16 13. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361

17 (Mandamus and Venue Act of 1962), 5 U.S.C. § 702 (APA), and 28 U.S.C. § 2201 (Declaratory

18 Judgment Act). The United States has waived its sovereign immunity pursuant to 5 U.S.C. § 702.
19 This Court may grant declaratory and injunctive relief pursuant to 5 U.S.C. § 702, 28 U.S.C. §
20 1651, and 28 U.S.C. §§ 2201–2202.
21 14. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(e) because
22 Defendants are officers or employees of the United States acting in their official capacities and
23 agencies of the United States; some Plaintiffs reside in this judicial district; and no real property
24 is involved in this action. Plaintiffs have exhausted all administrative remedies.
25 SECOND AMENDED COMPLAINT - 5
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1 15. Intradistrict assignment is proper in the San Francisco Division because a substantial part

2 of the events or omissions that give rise to the claim occurred in San Francisco and Napa Counties.

3 Civil L. R. 3-2(c), (d).

4

PARTIES

5

I. Plaintiffs

6 16. Plaintiff Tannaz Toloubeydokhti is a U.S. citizen residing in San Diego, California. She

7 seeks to be reunited with her parents, for whom she has an approved family-based immigrant visa
8 petition.
9
17. Plaintiffs Fathollah Tolou Beydokhti and Behnaz Malekghaeini are Iranian nationals 10

residing in Iran. Mr. Tolou Beydokhti and Ms. Malekghaeini have pending immigrant visas based 11

12 on Ms. Toloubeydokhti’s approved family-based immigrant visa petitions.

13 18. Plaintiff Afrooz Kharazmi is a U.S. citizen residing in Loveland, Ohio. She seeks to be

14 reunited with her sister, for whom she has an approved family-based visa petition.

15 19. Plaintiff Afshan Alamshah Zadeh is an Iranian national residing in Iran. Ms. Alamshah

16 Zadeh has a pending immigrant visa based on Ms. Kharazmi’s approved family-based immigrant

17 visa petition.

18 20. Plaintiff Dr. Najib Adi is a U.S. citizen residing in Bristow, Virginia. He seeks to be
19 reunited with his Syrian mother, for whom he has an approved family-based visa petition. He has
20 been awaiting adjudication of her eligibility for a waiver for more than a year.
21 21. Plaintiff Ismail Alghazali is a U.S. citizen currently residing in Djibouti. He had an
22 approved family-based petition for his Yemeni wife, but her visa application was denied at her
23 interview in Djibouti in December 2017 and she was not considered for a waiver. He is separated
24 from his wife and infant son, whom he wishes to bring home with him to the United States.
25 SECOND AMENDED COMPLAINT - 6
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1 22. Plaintiff Malik Almathil is a U.S. citizen residing in New York City. He had an approved
2 family-based petition for his Yemeni wife, who was told at her interview on July 31, 2017 that her
3 visa was approved. Shortly after the Proclamation went into effect in December 2017, she received
4 a boilerplate letter denying her a waiver and revoking her visa approval. He seeks to be reunited 5 with his wife. 6
23. Plaintiff Khalil Ali Nagi is a U.S. citizen residing in Schenectady, New York with his four7
year-old U.S. citizen daughter. He has an approved family-based petition for his Yemeni wife, 8
who had her interview in Djibouti in October 2017. She was told at her interview that her visa 9
would be approved, but in March 2018 her visa was denied and she was informed that she would 10
not be considered for a waiver. Mr. Ali Nagi seeks to be reunited with his wife. 11 12 24. Plaintiff Hezam Alarqaban is a lawful permanent resident of the United States residing in 13 Oakland, California. He seeks to be reunited with his Yemeni wife and eleven children, for whom 14 he has approved family-based visa petitions and who had been issued visas that were later revoked.
15 He is awaiting adjudication of his family’s eligibility for a waiver.
16 25. Plaintiff Abdurraouf Gseaa is a U.S. citizen residing in Houston, Texas. He seeks to be
17 reunited with his Libyan wife, for whom he has an approved family-based visa petition. He is
18 awaiting adjudication of her eligibility for a waiver.
19 26. Plaintiff Sudi Wardere is a U.S. citizen residing in Kirkland, Washington. She seeks to be 20 reunited with her Somali husband, for whom she has an approved family-based visa petition. Ms. 21
Wardere is awaiting adjudication of her husband’s eligibility for a waiver. 22
27. Plaintiff Khadija Aden is a lawful permanent resident of the United States residing in 23
Seattle, Washington. She seeks to be reunited with her son, who was born and has lived his entire 24
life in Ethiopia, and for whom she has an approved family-based petition. 25
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1 28. Plaintiff Soheil Vazehrad is a U.S. citizen residing in Napa, California. He seeks to be
2 reunited with his fiancée, for whom he has an approved K1 fiancé visa petition.
3 29. Plaintiff Atefehossadat Motavaliabyazani is an Iranian national residing in Iran. Ms. 4 Motavaliabyazani has a pending nonimmigrant visa based on Mr. Vazehrad’s approved K1 fiancé 5 visa petition. 6
30. Plaintiff Bamshad Azizi is a lawful permanent resident of the United States residing in San 7
Jose, California. He has assisted his parents in applying for B1/B2 visitor visas so that they may 8
come visit him in the United States. 9
31. Plaintiffs Roghayeh Azizikoutenaei and Hojjatollah Azizikoutenaei are Iranian nationals 10
residing in Iran. Mr. and Mrs. Azizikoutenaei have applied for B1/B2 visitor visas to visit their 11 12 son Mr. Azizi in the United States. 13 32. Plaintiff Clyde Jean Tedrick II is a U.S. citizen residing in Rockville, Maryland. He is 14 married to an Iranian national and has assisted his parents-in-law in applying for B1/B2 visitor
15 visas so that they may come visit his family in the United States.
16 33. Plaintiff Mitra Farnoodian-Tedrick is a lawful permanent resident of the United States
17 residing in Rockville, Maryland. She is married to Mr. Tedrick. She has assisted her parents in
18 applying for B1/B2 visitor visas so that they may come visit her family in the United States.
19 34. Plaintiffs Farajollah Farnoudian and Farangis Emami are Iranian nationals residing in Iran. 20 They have applied for B1/B2 visitor visas so that they may visit their daughter Ms. Farnoodian21
Tedrick, their son-in-law Mr. Tedrick, and their family in the United States. 22
35. Plaintiff Maral Charkhtab Tabrizi is a lawful permanent resident of the United States 23
residing in Tempe, Arizona. She is married to a U.S. citizen and has recently given birth to her 24
25 SECOND AMENDED COMPLAINT - 8
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1 first child. She has assisted her Iranian parents in applying for B1/B2 visitor visas so that they may
2 come visit her and meet their grandchild in the United States.
3 36. Plaintiffs Zahra Rouzbehani and Bahram Charkhtab Tabrizi are Iranian nationals residing
4 in Iran. Ms. Rouzbehani and Mr. Charkhtab Tabrizi have applied for B1/B2 visitor visas so that 5 they may come visit their daughter Ms. Charkhtab Tabrizi and meet their grandchild in the United 6
States. 7
37. Plaintiff Maryam Mozafari is a lawful permanent resident of the United States residing in 8
San Francisco, California. She has assisted her Iranian father in applying for a B1/B2 visitor visa 9
so that he may come visit her in the United States. 10
38. Plaintiff Mohammad Mehdi Mozaffary is an Iranian national residing in Iran. Mr. 11 12 Mozaffary has applied for a B1/B2 visa so that he may visit his daughter Ms. Mozafari in the 13 United States. 14 39. Plaintiff Behnam Babalou is an Iranian national residing in Iran who invested $500,000.00
15 in CMB Infrastructure Investment Group XIV, L.P. (“CMB”), located in San Bernardino,
16 California. Mr. Behnam Babalou has an approved immigrant visa petition based on his investments
17 in and significant business ties to CMB.
18 40. Plaintiff Hoda Mehrabi Mohammad Abadi is an Iranian national residing in Iran who
19 invested $500,000.00 in Kimpton Hotels & Restaurants (“Kimpton Hotels”) in Milwaukee, 20 Wisconsin. She has an approved immigrant visa petition based on her $500,000.00 investment in 21
Kimpton Hotels. 22
41. Plaintiff Dr. Mahdi Afshar Arjmand is an Iranian national, currently residing in Iran, who 23
has an approved immigrant visa petition based on his extensive record of achievements as a 24
noncitizen with extraordinary ability. 25
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1 42. Plaintiff Dr. Ehsan Heidaryan is an Iranian national, currently residing in Brazil, who has

2 an approved immigrant visa petition based on his extensive record of achievements as a noncitizen

3 with extraordinary ability.

4 43. Plaintiff Najmeh Maharlouei is an Iranian national, currently residing in Shiraz, Iran, who
5 has an approved immigrant visa petition based on her extensive record of achievements and the
6 fact that her work is in the national interest of the United States.
7 44. Plaintiff Nastaran Hajiheydari is an Iranian national, currently residing in Iran, who has an
8 approved immigrant visa petition based on her extensive record of achievements and the fact that
9 her work is in the national interest of the United States.
10 45. Plaintiff Mohamad Hamami is a Syrian national and a world-class violinist, currently
11
12 residing in Dubai, who has an approved immigrant visa petition based on his extensive record of
13 achievements as a noncitizen with extraordinary ability.

14

II. Defendants

15 46. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and is sued in her official

16 capacity. Secretary Nielsen is responsible for the U.S. Department of Homeland Security

17 (“DHS”)’s implementation and enforcement of the Proclamation.

18 47. Defendant DHS is an executive department of the United States government,
19 headquartered in Washington, DC. DHS is assigned several responsibilities regarding
20 implementation and enforcement of the Proclamation.
21 48. Defendant Michael R. Pompeo is the Secretary of State and is sued in his official capacity.
22 Secretary Pompeo oversees the U.S. Department of State (“State Department”)’s activities and its
23 implementation and enforcement of the Proclamation.
24

25
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1 49. Defendant State Department is an executive department of the United States government,

2 headquartered in Washington, DC. The State Department has primary responsibility for issuing

3 visas and for implementing the Proclamation. The State Department is assigned several
4 responsibilities regarding implementation and enforcement of the Proclamation.
5 50. Defendant Kevin K. McAleenan is the Commissioner of U.S. Customs and Border 6
Protection (“CBP”) and is sued in his official capacity. Commissioner McAleenan is responsible 7
for CBP’s implementation of the Immigration and Nationality Act (“INA”) and its implementation 8
and enforcement of the Proclamation. 9
51. Defendant CBP is an administrative agency within DHS, headquartered in Washington, 10
DC. CBP is assigned several responsibilities regarding implementation and enforcement of the 11 12 Proclamation.
13 52. Defendant L. Francis Cissna is the Director of U.S. Citizenship and Immigration Services
14 (“USCIS”) and is sued in his official capacity. Director Cissna is responsible for USCIS’s
15 implementation of the INA and its enforcement of the Proclamation.

16 53. Defendant USCIS is an administrative agency within DHS, headquartered in Washington,

17 DC. USCIS oversees lawful immigration to the United States, including the approval of visa

18 petitions. USCIS is assigned several responsibilities regarding implementation and enforcement

19 of the Proclamation.

20

STATEMENT OF FACTS

21 I.

The Proclamation

22 54. On September 24, 2017, President Trump issued Presidential Proclamation 9645, entitled

23 “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United
24
States by Terrorists or Other Public-Safety Threats.” Ex. A. The Proclamation is the third version 25
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1 of a travel ban enacted by President Trump in fulfilment of promises he made on the campaign
2 trail to institute a “total and complete shutdown” on Muslims entering the United States. Jenna
3 Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’
4 Wash. Post (Dec. 7, 2015), https://www.washingtonpost.com/news/post5 politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslimsentering 6
-the-united-states/?utm_term=.6cf6b32baba2. See also Todd Green, By any other name: Why the 7
‘travel ban’ really is a Muslim ban, Religion News Service (July 3, 2018), 8
https://religionnews.com/2018/07/03/by-any-other-name-why-the-travel-ban-really-is-a-muslim9
ban/. 10
55. The Proclamation puts in place an indefinite travel ban on most nationals of five 2 11 12 predominantly Muslim countries, including all immigrants and various categories of non13 immigrants from each of the enumerated countries. 3 Alongside these entry restrictions, the 14 Proclamation provides for a waiver that may be granted on a case-by-case basis to individuals who
15 meet three specific criteria.4 Ex. A, § 3(c); infra Section II.
16 56. The Proclamation was challenged in court, and before its effective date, two district courts
17 issued nationwide injunctions prohibiting implementation of the ban against individuals with
18
19
20 2 The Proclamation originally included six Muslim-majority countries: Chad, Iran, Libya, Somalia, Syria, and
Yemen. Ex. A, § 2(a). In April 2018, the administration removed Chad from the list of targeted countries. Press
21 Release, U.S. Dep’t of State, Presidential Proclamation Lifts Travel Restrictions for Chad (Apr. 10, 2018),
https://www.state.gov/r/pa/prs/ps/2018/04/280364.htm. The Proclamation also prevents entry of certain Venezuelan
22 government officials and their family members and of all North Korean nationals. See Ex. A, § 2(d), (f). 23 3 Under the terms of the Proclamation, all Syrian nationals are banned; all Libyan and Yemeni nationals seeking
immigrant or non-immigrant B1/B2 visas are banned; all Iranian nationals except non-immigrants seeking F, M, or J
24 visas are banned; and all Somali nationals seeking immigrant visas are banned.
4 The Second Executive Order created a waiver process, Exec. Order No. 13780, 82 Fed. Reg. 13209, § 3(c) (Mar. 9,
25 2017), which the Proclamation extended. SECOND AMENDED COMPLAINT - 12
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1 “bona fide relationships” to persons or entities in the United States. See Int’l Refugee Assistance

2 Project v. Trump, 265 F.Supp.3d 570 (D. Md. 2017); Hawaii v. Trump, 265 F.Supp.3d 1140 (D.

3 Haw. 2017). On December 4, 2017, the Supreme Court granted Defendants’ application for a stay

4 of the preliminary injunctions entered by the district courts, allowing full implementation of the
5 travel ban to proceed. See Trump v. Int’l Refugee Assistance Project, 138 S. Ct. 542 (2017). The
6 Supreme Court subsequently reversed the preliminary injunction and allowed the Proclamation to
7 remain fully in effect. Trump v. Hawaii, 585 U.S. ___, 138 S. Ct. 2392 (2018). The Court found
8 that the Proclamation likely did not violate the Constitution, in part because of the existence of a
9 case-by-case waiver process that provides for individualized consideration of every visa applicant.
10 Id. at 2422-23.
11
12 57. Since December 4, 2017, the Proclamation has been in full effect, and the only means by
13 which covered individuals from the banned countries may enter the United States is through grant

14 of a case-by-case waiver.

15

II. Case-by-Case Waivers under the Proclamation

16 58. Section 3 of the Proclamation contains a subsection entitled “Waivers,” which states:

17

Notwithstanding the suspensions of and limitations on entry set

forth in section 2 of this proclamation, a consular officer, or the

18

Commissioner, United States Customs and Border Protection

(CBP), or the Commissioner’s designee, as appropriate, may, in

19

their discretion, grant waivers on a case-by-case basis to permit the

20

entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be

21

appropriate and consistent with subsections (i) through (iv) of this

subsection [laying out waiver standards].

22 Ex. A, § 3(c).

23 59. The Proclamation explains that a waiver may be granted if, in a consular officer’s or CBP’s
24
discretion, a foreign national has demonstrated that: (1) denial of entry “would cause the foreign 25
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1 national undue hardship”; (2) his or her “entry would not pose a threat to the national security or

2 public safety of the United States”; and (3) his or her “entry would be in the national interest.” Id.

3 § 3(c)(i).

4 60. The Proclamation then specifies that while “[c]ase-by-case waivers may not be granted

5 categorically,” they “may be appropriate, subject to the limitations, conditions, and requirements

6 set forth” in subsection (c), “in individual circumstances ….” Id. § 3(c)(iv). It proceeds to give a

7 generous list of non-exhaustive examples of circumstances under which issuance of a waiver may

8

be appropriate, including:

9

(A) the foreign national has previously been admitted to the United

10

States for a continuous period of work, study, or other long-term

activity, is outside the United States on the applicable effective date

11

… of this proclamation, seeks to reenter the United States to resume

12

that activity, and the denial of reentry would impair that activity;

13

(B) the foreign national has previously established significant contacts with the United States but is outside the United States on

14

the applicable effective date ... of this proclamation for work, study,

or other lawful activity;

15 (C) the foreign national seeks to enter the United States for

16

significant business or professional obligations and the denial of

entry would impair those obligations;

17

(D) the foreign national seeks to enter the United States to visit or

18

reside with a close family member (e.g., a spouse, child, or parent)

who is a United States citizen, lawful permanent resident, or alien

19

lawfully admitted on a valid nonimmigrant visa, and the denial of

20

entry would cause the foreign national undue hardship;

21

(E) the foreign national is an infant, a young child or adoptee, an

individual needing urgent medical care, or someone whose entry is

22

otherwise justified by the special circumstances of the case ….

23 Id.

24

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1 61. The Proclamation also instructs that, “[t]he Secretary of State and the Secretary of

2 Homeland Security shall coordinate to adopt guidance addressing the circumstances in which

3 waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”

4 Id. § 3(c). It further directs the Secretaries to:

5

[A]ddress the standards, policies and procedures for:

6 (A) determining whether the entry of a foreign national would not

7

pose a threat to the national security or public safety of the United

States;

8 (B) determining whether the entry of a foreign national would be in

9

the national interest;

10

(C) addressing and managing the risks of making such a

determination in light of the inadequacies in information sharing,

11

identity management, and other potential dangers posed by the

12

nationals of individual countries subject to the restrictions and limitations imposed by this proclamation;

13

(D) assessing whether the United States has access, at the time of

14

the waiver determination, to sufficient information about the foreign

national to determine whether entry would satisfy the requirements

15

of subsection (i) of this subsection; and

16

(E) determining the special circumstances that would justify

granting a waiver under subsection (iv)(E) of this subsection.

17

Id. § 3(c)(ii). 18

III. Agency Guidance and Implementation 19

20 62. The Proclamation directs the Secretary of State and the Secretary of Homeland Security to

21 develop specific guidance for consular officers and visa applicants on how the waiver provisions

22 will be implemented. Id. § 3(c).

23 63. Despite this clear mandate, the agencies have failed to provide meaningful guidance that

24 sheds light on the waiver process or provides applicants with an orderly way to access that process.

25
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1 See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (“The Government … has offered
2 no explanation for how these [discretionary waiver] provisions would function in practice: how
3 would the ‘national interest’ be determined, who would make that determination, and when?”). 4 64. After the Supreme Court’s lifting of the stays on the Proclamation, the State Department 5 issued, through its website, some minimal instructions regarding its immediate implementation. 6
Ex. C, U.S. Dep’t of State, New Court Order on Presidential Proclamation (Dec. 4, 2017). That 7
posting stated that consular officers will review eligibility for a waiver at the time of an applicant’s 8
interview. Id. But it did not explain how waivers would be adjudicated for individuals who had 9
already had their interviews and, as set forth more fully below, it did not answer any critical 10
questions about how individuals may apply for a waiver and how they may “demonstrate” their 11 12 eligibility for a waiver. 13 65. All available evidence shows that Defendants are not providing any meaningful 14 individualized consideration of waiver applicants’ eligibility. Just days after the Proclamation went
15 into effect, several organizations and attorneys, including undersigned counsel, began receiving
16 reports from individuals covered by the ban of pro forma, mass denials of both visas and waivers
17 by consular offices in Armenia, Turkey, Djibouti, Dubai, Abu Dhabi, and elsewhere. See Yeganeh
18 Torbati & Mica Rosenberg, Exclusive: Visa Waivers Rarely Granted under Trump's Latest U.S.
19 Travel Ban: Data, Reuters (Mar. 6, 2018), https://www.reuters.com/article/us-usa-immigration20 travelban-exclusive/ exclusive-visa-waivers- rarely-granted-under-trumps-latest-u-s-travel-ban21
data-idUSKCN1GI2DW; Ex. D, Decl. of Jay Gairson (“Gairson Decl.”); infra Section IV. Many 22
of the individuals who were notified that they had been denied waivers, including Plaintiffs in this 23
action, had never been informed about or provided an opportunity to apply for a waiver. See infra 24
25 SECOND AMENDED COMPLAINT - 16
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1 Section IV. Automatically denied individuals included those who had previously been informed

2 that their visas had been approved. See infra Section IV.

3
4 5 66.

A. The Guidance Provided by Federal Officials About the Waiver Process Has Been Non-Existent or Conflicting.
After the Proclamation went into effect in December 2017, visa applicants immediately

6 began to contact embassies and consulates abroad to ask for guidance and clarification, but

7 received no response or standard automated responses that did not address their questions or

8 provide meaningful information. See infra Section IV. Attorneys contacted the State Department

9 for clarification but also received inadequate and inconsistent responses. See infra Section IV.

10 67. More than fourteen months after the Proclamation went into effect and almost a year and
11 a half since its issuance, Defendants have yet to promulgate clear guidance, and their practices
12 continue to sow confusion and chaos. See Trump v. Hawaii, 585 U.S. ___, 138 S. Ct. 2392, 2431
13 (2018) (Breyer, J., dissenting) (stating that, although the Proclamation directs the Secretaries to 14
develop guidance for consular officers, to the Court’s “knowledge, no guidance has issued”). To 15
the extent that guidance has issued, it has been confusing or contradictory, and has failed to shed 16
light on key questions about the waiver process. 17
68. Documents released in response to Freedom of Information Act litigation demonstrate a 18
waiver process that is designed to make it especially difficult for immigrants to obtain waivers— 19 20 in clear conflict with the examples provided in the Proclamation. See Dara Lind, Exclusive:
21 Internal documents show how hard it is for some immigrants to get a travel ban waiver, Vox
22 (Sept. 21, 2018), https://www.vox.com/2018/9/20/17622622/travel-ban-waiver-muslim-how.
23 The guidance, which includes significant redactions, fails to provide for a process by which

24 individuals may demonstrate their eligibility for a waiver, and also appears not to be followed in

25
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1 practice. For example, it states that consular officials may grant waivers, but by all indications,

2 that is not true in practice. See id. See also U.S. Dep’t of State, Operational Q&As on P.P. 9645

3 in light of the U.S. Supreme Court orders of December 4, 2017, lifting lower court injunctions

4 and pursuant to guidance in 17 STATE 97682 (Jan. 23, 2018), https://refugeerights.org/wp-

5 content/uploads/2018/09/FOIA-Waiver-Guidance.pdf; Ex. B, Richardson Decl.; Ex. D, Gairson

6 Decl.; infra Section IV.

7 69. The State Department initially provided the following general statement in response to a

8

query by a U.S. Senator about the waiver eligibility criteria:

9

First, to satisfy the undue hardship criterion, the applicant must

10

demonstrate to the consular officer’s satisfaction that an unusual situation

exists that compels immediate travel by the applicant and that delaying

11

visa issuance and the associated travel plans would defeat the purpose of

12

travel. Second, the applicant’s travel may be considered in the national interest if the applicant demonstrates to the consular officer’s satisfaction

13

that a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of

14

that country are lifted.

15

Finally, to establish that the applicant does not constitute a threat to

national security or public safety, the consular officer considers the

16

information-sharing and identity-management protocols and practices of

the government of the applicant’s country of nationality as they relate to

17

the applicant. If the consular officer determines, after consultation with

the Visa Office, that an applicant does not pose a threat to national

18

security or public safety and the other two requirements have been met, a

visa may be issued with the concurrence of a consular manager. 19

20 Ex. E, Letter from Mary K. Waters, U.S. Dep’t of State, to Chris Van Hollen, U.S. Senator (Feb.

21 22, 2018) (“First Van Hollen Letter”).

22 70. Although the State Department asserted in the same letter that “[t]he Department’s

23 worldwide guidance to consular officers regarding waivers is drawn directly from the

24 Proclamation,” id., the above-quoted statement adds a requirement of showing “that a U.S. person

25
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1 or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed
2 with respect to nationals of that country are lifted,” which does not appear anywhere in the
3 Proclamation. 4 71. Moreover, individuals who clearly meet the criteria outlined in the Proclamation and the 5 statement provided to Senator Van Hollen are routinely being denied waivers without due 6
consideration, in some cases just days after the ban went into effect. See, e.g., Trump v. Hawaii, 7
585 U.S. ___, 138 S. Ct. 2392, 2431 (2018) (Breyer, J., dissenting) (identifying “numerous 8
applicants who could meet the waiver criteria,” but who have nonetheless been summarily 9
rejected, including scholars, relatives of U.S. citizens, and a Yemeni child with cerebral palsy,5 10
and pointing to an amicus brief which “identified 1,000 individuals—including parents and 11 12 children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds 13 of whom seem to meet the waiver criteria.”) 14 72. Consular officials, in fact, have been left with the understanding that the goal is to deny
15 waivers to the fullest extent possible, Ex. B, Richardson Decl., and applicants and their attorneys
16 remain completely confused about applicable standards of eligibility for waivers.
17 73. Nor has the State Department provided an orderly process through which individuals who
18 are covered by the ban may apply for a waiver or seek to “demonstrate”—as the Proclamation 19 specifically provides—their eligibility for a waiver. See infra Section IV. Instead, individuals, 20 attorneys, and organizations seeking to assist impacted community members have had to resort 21
22
23
24 5 After Justice Ruth Bader Ginsburg inquired about the child’s case at oral argument in Trump v. Hawaii on April
25, 2018, a waiver was granted in her case and her visa was issued, allowing her to come to the United States with
25 her U.S. citizen father. SECOND AMENDED COMPLAINT - 19
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1 to guesswork and have had to invent a process by which to obtain consideration of materials

2 relevant to any meaningful waiver determination. See Ex. D, Gairson Decl.

3 74. Further, even where the State Department has provided minimal guidance, that guidance

4 does not appear to be followed or applied with any consistency. For example, the State

5 Department website provides a definition of “close family member,” stating that the definition
6 for purposes of the Proclamation is the same as the definition of “immediate relative” contained
7 in the INA.6 Ex. F, U.S. Dep’t of State, Revisions to Presidential Proclamation 9645 (Apr. 10,
8 2018) (citing 8 U.S.C. § 1151(b)(2)(A)(i)). But according to an email received by counsel from a
9 U.S. Consulate in Canada, visa applicants who seek to be reunited with a parent in the United
10
States are ineligible for consideration for a waiver if they are over the age of 21, a definition that 11
12 is found nowhere in immigration law and that is the reverse of the definition of “immediate

13 relative” in the cited provision. The email exchange reads in relevant part as follows:

14

COUNSEL: [I]t appears as though my client, [REDACTED], has been

denied the opportunity to request a waiver of the presidential

15

proclamation.

According to the presidential proclamation itself and guidance on the

16

State Department's website, foreign nationals who seek to enter the US to

be reunited with a close family member (e.g. spouse, child, or parent) are

17

eligible for requesting a waiver.

My client is the daughter of a United States citizen. Could you kindly

18

explain why your office has denied my client the opportunity to request a

waiver of the presidential proclamation?

19

CONSULATE: A consular officer may issue a visa based on a listed

20

waiver category to nationals of countries identified in the Presidential Proclamation on a case-by-case basis.

21

It has been determined that your client, [REDACTED], does not meet the

definition of close family as she is over 21 years of age.

22

This decision cannot be appealed.

23

24
6 8 U.S.C. § 1151(b)(2)(A)(i) defines “immediate relatives” as the children, spouses, and parents of U.S. citizens,
25 and only allows children over the age of 21 to petition for immigrant visas for their parents. SECOND AMENDED COMPLAINT - 20
26

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1 Ex. G, Email correspondence between U.S. Consulate General in Vancouver, Canada, and Attorney Shabnam Lotfi (Jan. 3-9, 2018).
2 75. Applicants in certain visa categories have been told that they are categorically not eligible
3 to be considered for a waiver—an assertion that is contrary to the terms of the Proclamation,
4
5 which states that every visa applicant will be considered for a waiver. See infra Section IV.C. In
6 the absence of clear standards to guide consular officers in their decision-making, different posts
7 appear to have adopted different practices. Ex. D, Gairson Decl. The result has been an almost-

8 uniform denial of case-by-case waivers, and a de facto practice that consular officials do not

9 have the authority to grant waivers. Ex. B, Richardson Decl.

10 76. Attorneys have also been told by consulates that they may not submit documents in

11 support of waiver applications for their clients, and that “[t]here is no role or requirement for

12 legal services to facilitate the waiver process.” One such email exchange reads in relevant part as

13 follows:

14 COUNSEL: Could you please kindly let us know whether you will allow our

15

office to submit a waiver packet on behalf of the beneficiary to outline and

present evidence that he meets the grounds for approval of a waiver in

16

consideration of the three grounds outlined by Section 3(c) of the Proclamation…

CONSULATE: As we said, we have all the required documents at this time. We

17

have already submitted a waiver request on behalf of the applicant, as the

applicant was informed during the interview. There is no role or requirement for

18

legal services to facilitate the waiver process, which the Embassy initiated as soon

as the applicant was interviewed. Please note – and inform your client – that only

19

U.S. government officials can author waiver requests.

20 Ex. H, Email correspondence between Attorney Parastoo Zahedi and the Consular 21 Section of the U.S. Embassy in Abu Dhabi (July 18-19, 2018).

22 77. Existing guidance also does not explain how consular officers should consider the

23 eligibility for a waiver of applicants who, like several Plaintiffs in this action, were interviewed

24

25
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1 prior to implementation of the Proclamation but were in administrative processing7 at the time

2 the ban went into effect, or for visa applicants whose applications were approved prior to

3 implementation of the ban but who had not yet gotten their visas stamped in their passports. See,

4 e.g., Ex. K, Findings of Fact and Conclusions of Law, Alharbi v. Miller, No. 1:18-cv-02435

5 (E.D.N.Y. filed Apr. 25, 2018), ECF No. 20.

6 78. The government has staunchly refused to provide meaningful information or to institute

7 an orderly, predictable process by which individuals may apply for a case-by-case waiver.8

8

B. Denial Letters Issued by Consular Officers Provide Further Evidence of the

9

Dearth of Meaningful Guidance.

10 79. Defendants provided the consulates and embassies abroad with a template letter to 11 provide to applicants when they have been denied a visa pursuant to the Proclamation. The letter 12 has two options for a consular officer to select: (1) “Taking into account the provisions of the 13

14

15 7 Administrative processing is a period after a visa interview during which applicants undergo additional screening
outside of “normal” visa processing. Maggio & Kattar & The Pennsylvania State University Law School’s Center

16

for Immigrants’ Rights, Administrative Processing FAQ, 1, Penn. State L. Sch., https://pennstatelaw.psu.edu/sites/ default/files/documents/pdfs/Immigrants/Administrative-Processing-FAQ.pdf (last visited Feb. 22, 2019). “Before

issuing a visa, consular officers review different databases to determine if information exists that may impact
17 individual eligibility for a visa. A ‘hit’ on a particular database occurs when there is a match between the visa

applicant and a database. These hits may be based on criminal convictions, security risks, and prior visa overstays or

18 denials (this list is non-exhaustive).” Id. A hit may also occur when an applicant’s name is similar to the name of

someone suspected of criminal activity. Id. at 4. “When an individual case has been tagged in a database, the

19 Department of State, at the request of the consular post, may initiate administrative processing.” Id. at 1. Cases filed
by nationals of several countries are routinely placed in administrative processing. Id. at 3.

20 8 In fact, the waiver process has been so opaque that, in addition to formal requests for information from U.S. senators,

two civil rights organizations, including undersigned counsel, have filed a FOIA request seeking documents from the
21 State Department that could provide some clarity and transparency about the travel ban waiver process. Muslim

Advocates and Center for Constitutional Rights, Freedom of Information Act Request Regarding the Waiver Process

22 Provided for in Presidential Proclamation 9645 (January 23, 2018), https://www.muslimad

vocates.org/files/2018.01.23_FOIA_Proclamation-Waivers-Signed.pdf. The case is currently being litigated in the

23 U.S. District Court for the District of Columbia. Muslim Advocates v. U.S. Dep’t of State, No. 1:18-cv-01546 (D.D.C.
filed June 28, 2018). In response to the litigation, the State Department has begun to produce documents, which have

24

included some guidance issued to consular officials. But the guidance has not shed further light on the process, and has raised more questions than it has answered. It also appears to conflict with statements by former consular officials

about the instructions they received.
25

SECOND AMENDED COMPLAINT - 22 26

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1 Proclamation, a waiver will not be granted in your case”; or (2) “The consular officer is

2 reviewing your eligibility for a waiver under the Proclamation.” Ex. I, Embassy letter regarding

3 eligibility for waiver under the Proclamation. There is no option indicating that a waiver has

4 been granted.
5 80. These form letters further confirm that not all individuals are being considered for case-
6 by-case waivers, in direct conflict with agency statements that “[a] consular officer will carefully
7 review each case to determine whether the applicant is affected by the Proclamation . . . and, if
8 so, whether the applicant qualifies for an exception or a waiver.” Ex. F, U.S. Dep’t of State,
9 Revisions to Presidential Proclamation 9645 (Apr. 10, 2018). As set forth previously, scores of
10 denials were issued just days after the Proclamation went into effect, and numerous individuals
11
12 who have received these form denials at the interview were told that their eligibility would not be
13 considered and that they may not submit additional documents in support of such consideration.

14 See infra Section IV.

15

C. Defendants Have Granted a “Minuscule Percentage” of Waiver Applications.

16 81. To date, the overwhelming majority of waiver applicants have been denied or stalled by

17 Defendants.

18 82. In a letter dated February 22, 2018, the State Department disclosed that, as of January 8,
19 2018, only two waivers were granted to applicants of the banned countries out of at least 6,555
20 applicants who were eligible to be considered for waivers—a rejection rate of more than 99%.
21 Ex. E, First Van Hollen Letter.
22 83. After the letter was made public, the State Department switched from disclosing the
23 number of waivers granted to disclosing only the number of waivers cleared—a figure that does
24

25
SECOND AMENDED COMPLAINT - 23 26

27

28

Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 24 of 68
1 not appear to bear any substantial relation to the number of waivers actually granted. The State
2 Department has also refused to provide a clear explanation of the term “cleared”.
3 84. As of March 6, 2018, 102 applicants had been cleared for waivers, likely out of an
4 expanded pool of applicants—moving the rejection rate to at least 98% of visa applicants. Torbati 5 & Rosenberg, Exclusive: Visa Waivers Rarely Granted, supra Section III. 6
85. As of April 30, out of 27,129 applicants from banned countries who were ostensibly 7
considered for waivers, only 579 had been cleared for waivers. Ex. J, Letter from Mary K. 8
Waters, U.S. Dep’t of State, to Chris Van Hollen, U.S. Senator (June 22, 2018) (“Second Van 9
Hollen Letter”). 10
86. According to the latest numbers from the State Department website, that figure is now at 11 12 2,673. U.S. Dep’t of State, June 26 Supreme Court Decision on Presidential Proclamation 9645 13 https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential14 proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html
15 (last visited February 23, 2019). Assuming a stable number of applications per month, the
16 rejection rate thus remains greater than 96%. See Trump v. Hawaii, 585 U.S. ___, 138 S. Ct.
17 2392, 2431 (2018) (Breyer, J., dissenting) (“That number, … however, when compared with the
18 number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible
19 for visas, in such categories as persons requiring medical treatment, academic visitors, students, 20 family members, and others belonging to groups that, when considered as a group (rather than 21
case by case), would not seem to pose security threats.”). 22
87. Ultimately, however, the numbers provided by the State Department are misleading, 23
since not all individuals “cleared” for waivers have been granted a waiver or issued a visa. Based 24
on all available evidence, being “cleared” for a waiver simply means that a consular official has 25
SECOND AMENDED COMPLAINT - 24 26
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 25 of 68

1 forwarded the case for consideration for a waiver grant by the State Department in Washington,

2 DC. Ex. D, Gairson Decl. Individuals “cleared” for waivers may continue to be stalled and may

3 not ultimately be granted a visa, rendering the government’s 2,673 figure essentially

4 meaningless.

5 88. Thus, based upon all available evidence, the percentage of persons who have actually

6 been granted a waiver and issued a visa remains considerably smaller than the bare 4% of

7 individuals who have been “cleared” for consideration for a waiver grant.

8 D. Former Consular Officials Have Confirmed the Absence of a Meaningful Waiver

9

Process.

10 89. Former consular officers have confirmed the absence of a meaningful waiver

11 consideration process.

12 90. In a sworn affidavit submitted in related litigation in the Eastern District of New York,

13 former consular official Mr. Christopher Richardson wrote:

14 As a Consular officer previously employed by the State Department my

15

impression and interpretation of how we as officers were to apply the

waiver process was as follows:

16

(a) They gave us a list of things and we would go down the list one by

17

one until we were able to determine at all possible cost that the person

was not eligible to even apply for the waiver. My understanding was no

18

one is to be eligible to apply.

19

(b) If for some reason an applicant made it through the list and we had no

20

choice but to determine we could find an applicant eligible to apply, regardless of the [Presidential Proclamation] instructions that we had

21

“discretion to grant the waiver,” we were not allowed to exercise that

discretion. We were mandated to send to Washington that we found this

22

applicant eligible to apply and Washington would then make the decision

to grant or deny the waiver.

23

24

25
SECOND AMENDED COMPLAINT - 25 26

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 26 of 68
1 Ex. B, Richardson Decl. at 4. See also Jeremy Stahl, “The Waiver Process Is Fraud,” Slate (June
2 15, 2018), https://slate.com/news-and-politics/2018/06/trump-travel-ban-waiver-process-is-a-
3 sham-two-consular-officers-say.html. 4 91. Mr. Richardson further stated: “[T]here really is no waiver [process] and the Supreme 5 Court was correct to point out that the waiver [process] is merely ‘window dressing.’” Ex. B, 6
Richardson Decl. at 3. Mr. Richardson’s description of the waiver process has been corroborated 7
by another consular officer. Stahl, supra. 8
92. These statements reveal a process that conflicts with the plain text of the Proclamation, 9
the information provided by the State Department on its website and in letters to U.S. senators, 10
the recently-released “guidance”, and arguments made by the government while defending 11 12 against litigation challenging the ban. As described by Mr. Richardson, officers were instructed 13 not to consider applicants for waivers in good faith and to make every effort to deny eligibility 14 even to apply for a waiver. They also were not allowed to exercise their discretion to grant a
15 waiver even where they did consider an applicant to be eligible.
16 93. Consistent with Mr. Richardson’s representations, numerous visa applicants have stated
17 that when they attended their visa interviews, officers informed them that waivers are processed
18 in Washington, DC. See Ex. D, Gairson Decl.; infra Section IV. This is in conflict with the State
19 Department’s claims that a visa applicant’s eligibility for a waiver is determined by the consular 20 officer at the time of the interview. 21
94. As a result of the inconsistent statements, the absence of meaningful guidance, and the 22
absence of an orderly process by which applicants may “demonstrate” their eligibility for a 23
waiver, applicants do not know who is adjudicating their requests for waivers, what information 24
25 SECOND AMENDED COMPLAINT - 26
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27
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 27 of 68

1 they are considering, and what the standards really are to qualify for a waiver grant. The process

2 continues to be “a sham”.

3

IV. The Plaintiffs

4 95. Plaintiffs include:

5

a. U.S. citizens and lawful permanent residents who are of Iranian, Libyan, Somali, Syrian,

6 and Yemeni national origin and/or who have Iranian, Libyan, Somali, Syrian, and Yemeni

7 family members who seek to enter the United States to permanently reside with their family
8 members;
9
b. Iranian family members of U.S. citizens or lawful permanent residents who seek to enter 10

the United States on family-based immigrant visas; 11

12

c. U.S. citizens and lawful permanent residents who are of Iranian, Libyan, Somali, Syrian,

13

and Yemeni national origin and/or who have Iranian, Libyan, Somali, Syrian, and Yemeni

14

family members who seek to enter the United States on non-immigrant visas;

15

d. Iranian family members of U.S. citizens or lawful permanent residents who seek to enter

16

the United States on fiancé or visitor visas;

17

e. Iranian nationals who have approved immigrant visas because of their substantial

18

investment in the United States; and

19

f. Iranian and Syrian nationals who have approved immigrant visas because of their

20

extraordinary abilities.

21 96. Several Plaintiffs have approved visa petitions for their family members. Others have
22 approved investment or extraordinary ability immigrant visas that have since been denied or stalled
23 under the Proclamation. All are suffering a range of ongoing harms including separation from their
24 family and loved ones; loss of jobs, research opportunities, and investments; emotional distress
25
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1 caused by extended separation from loved ones at critical times in their lives including pregnancy

2 and childbirth; and a range of financial losses for visa application fees, travel costs,

3 accommodation costs, medical fees, and other costs directly or indirectly associated with the visa

4 application process.
5 97. Each of the Plaintiffs’ circumstances fit directly under one or more of the examples offered
6 in the Proclamation of circumstances under which a waiver grant may be appropriate. Many have
7 received boilerplate letters denying them visas and waivers. Others have been informed that their
8 eligibility for a waiver is being considered, but have had their applications stalled and have been
9 awaiting a decision on their visa applications for months. Most have had no opportunity to submit
10 documents or materials demonstrating their eligibility for a waiver.
11
12 98. Plaintiffs all seek clear guidance about the waiver process, an opportunity to apply in an
13 orderly manner with full understanding of the criteria and methods by which waiver determinations

14 are made, and full and timely adjudication of their waiver requests.

15

A. Family members seeking reunification in the United States

16 i.

Tannaz Toloubeydokhti, Fathollah Tolou Beydokhti, and Behnaz Malekghaeini

17 99. Plaintiff Tannaz Toloubeydokhti is a U.S. citizen of Iranian origin who resides in San

18 Diego, California.
19 100. Ms. Toloubeydokhti is employed as an obstetric-gynecologist and has dedicated her career
20 to improving the lives of American mothers and their babies.
21 101. Ms. Toloubeydokhti petitioned for immigrant visas for her parents, Plaintiffs Fathollah
22 Tolou Beydokhti and Behnaz Malekghaeini, both Iranian nationals, on September 1, 2016. Her
23 petitions were approved, and their visa interviews were scheduled for December 21, 2017, at the
24 U.S. Embassy in Yerevan, Armenia.
25 SECOND AMENDED COMPLAINT - 28
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1 102. Despite the lack of guidance or information about waiver applications and criteria for

2 consideration, Mr. Tolou Beydokhti and Ms. Malekghaeini put together documents they believed

3 would demonstrate that they meet the criteria for a waiver under the terms of the Proclamation.
4 But when they attempted to present those documents to the consular official, the official refused
5 to review them, stated that they did not qualify for a waiver, and stated that their visas were denied. 6
103. Mr. Tolou Beydokhti and Ms. Malekghaeini’s cases fit within one of the examples 7
provided in the Proclamation as a situation in which a grant of a waiver may be appropriate. 8
104. Ms. Toloubeydokhti has suffered significant emotional distress because she has been 9
deprived of the opportunity to have her parents present during her pregnancy and at the birth of 10
her child. Her parents have similarly suffered emotional distress at their separation from their 11 12 daughter during her time of need.
13 105. The family has also suffered and is continuing to suffer significant financial losses. They
14 have paid filing fees and travel costs which they will be unable to recover. Ms. Toloubeydokhti
15 now also has to incur significant childcare expenses in the absence of her parents, who would have

16 helped take care of her child while she is at work.

17

ii. Afrooz Kharazmi and Afshan Alamshah Zadeh

18 106. Plaintiff Afrooz Kharazmi, a U.S. citizen of Iranian origin residing in Loveland, Ohio, filed
19 an immigrant visa petition with USCIS on June 1, 2004 for her sister, Plaintiff Afshan Alamshah 20 Zadeh, an Iranian national currently residing in Iran. 21 107. Ms. Alamshah Zadeh waited patiently for 12 years for her priority date9 to become current. 22

23

24

9 An applicant’s priority date is the date upon which her application was filed. Unless the applicant is a spouse, parent, or minor child of a U.S. citizen, the applicant must wait until his or her priority date becomes “current”

before she can apply for adjustment of her status to that of a lawful permanent resident. For siblings, priority dates
25 can take more than a decade to become current.

SECOND AMENDED COMPLAINT - 29 26

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 30 of 68
1 108. USCIS approved her petition in October 2016. The U.S. Embassy in Abu Dhabi, UAE,
2 scheduled Ms. Alamshah Zadeh’s immigrant visa interview for January 7, 2018.
3 109. Ms. Alamshah Zadeh attended the interview and was informed during the interview that 4 her immigrant visa was denied pursuant to the Proclamation. 5 110. At no point was Ms. Alamshah Zadeh informed that she could seek to “demonstrate” her 6
eligibility for a waiver under the terms of the Proclamation. 7
111. At no point was Ms. Alamshah Zadeh provided an opportunity to apply for a waiver or to 8
submit documents in support of such application. 9
112. Accordingly, the consular officer was not made aware of and likely did not consider any 10
factors that would have been relevant to determining whether continuing separation would cause 11 12 her and her family members “undue hardship.” Ms. Alamshah Zadeh has been living in limbo for 13 years while waiting to rejoin her family in the United States, and has not settled down or planned 14 for her future in Iran because she reasonably believed that she would soon be reunited with her
15 two U.S. citizen parents and her U.S. citizen sister.
16 113. Ms. Alamshah Zadeh’s case fits within one of the examples provided in the Proclamation
17 as a situation in which a grant of a waiver may be appropriate.
18 114. Ms. Kharazmi and Ms. Alamshah Zadeh have endured years of separation from each other.
19 Ms. Alamshah Zadeh’s entire family are U.S. citizens residing in the United States; she is the only 20 family member left in Iran and now risks being permanently separated from them. 21
115. Ms. Kharazmi and Ms. Alamshah Zadeh have also paid thousands of dollars in attorneys’ 22
fees, filing fees, travel costs, and medical fees, which they will be unable to recover. 23
iii. Dr. Najib Adi 24
25 SECOND AMENDED COMPLAINT - 30
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1 116. Plaintiff Dr. Najib Adi is a U.S. citizen of Syrian origin who owns a highly successful
2 dental practice in Gainesville, Virginia. He employs close to 20 people and provides dental
3 services to well over 4,000 patients. 4 117. Since war broke out in Syria in 2011, Dr. Adi has been unable to visit his family back 5 home. His father was deceased in 2014 and he was not able to say goodbye or to attend his 6
funeral. His mother is a 70-year-old widow living in war-torn Damascus. He wishes to bring her 7
home so that she can spend her golden years with him, his wife, and his two children and so they 8
can take care of her as she grows older. 9
118. In February 2017, he petitioned for a family-based immigrant visa for his mother. The 10
petition was approved in August 2017, and her interview was scheduled at the U.S. Embassy in 11 12 Amman, Jordan for December 26, 2017. 13 119. Hoping to bring his mother home with him after the interview, Dr. Adi traveled to Jordan 14 and went with his mother to the interview.
15 120. At no point during this process was Dr. Adi or his mother informed that she could seek to
16 “demonstrate” her eligibility for a waiver under the terms of the Proclamation. However, on his
17 own initiative and with the assistance of an immigration attorney, he prepared a letter and
18 documentary evidence outlining the reasons his mother should be granted a waiver under the 19 Proclamation, and presented this evidence to the consular official at the interview. The consular 20 official told Dr. Adi and his mother that because of the Proclamation, he is unable to grant her a 21
visa even though everything looked to be in order, but that she would be considered for a waiver 22
grant. 23
24
25 SECOND AMENDED COMPLAINT - 31
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1 121. For more than a year, Dr. Adi and his mother have been waiting for word on whether she

2 has been granted a waiver. They have received no further information despite multiple queries,

3 including a congressional inquiry, about the status of her case.

4 122. Dr. Adi is suffering severe emotional distress at his separation from his mother, and his

5 feeling of helplessness at not being able to take care of her when she needs him. He is worried
6 about her safety in Syria and only wishes to bring her home so they can make up for lost time
7 being apart from each other. Dr. Adi is additionally suffering emotional distress because he feels
8 he is being treated like a second-class citizen and not being allowed to access the full privileges of
9 citizenship due to his religion and national origin.
10
123. Dr. Adi has paid thousands of dollars in attorneys’ fees, filing fees, travel costs, and 11
12 medical fees, which he will be unable to recover.

13

iv. Ismail Alghazali

14 124. Plaintiff Mr. Ismail Alghazali is a U.S. citizen of Yemeni origin currently residing in

15 Djibouti. He was compelled to leave his home in the United States in order to be with his

16 Yemeni wife, who has been unable to come to the United States because of the Proclamation.

17 125. He petitioned for a family-based immigrant visa for his wife in or around June 2016, and

18 the petition was approved on November 23, 2016. Her interview was scheduled for January 3,
19 2018 at the U.S. Embassy in Djibouti.
20 126. She attended her interview and was informed immediately that her visa was denied and
21 that she would not be considered for a waiver.
22 127. At no point was Mr. Alghazali or his wife informed that she could seek to “demonstrate”
23 her eligibility for a waiver under the terms of the Proclamation.
24

25
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1 128. At no point was Mr. Alghazali or his wife provided an opportunity to apply for a waiver or

2 to submit documents in support of such application.

3 129. Mr. Alghazali’s wife’s case fits within one of the examples provided in the Proclamation
4 as a situation in which a grant of a waiver may be appropriate.
5 130. Mr. Alghazali and his wife are currently stuck in Djibouti, where life is difficult and
6 extremely expensive. Mr. Alghazali was forced to leave his job in the United States because his
7 wife, who was pregnant at the time, could not be on her own in Djibouti. They are unable to go
8 to Yemen, which is currently in the throes of a violent civil war the United Nations has described
9 as the worst humanitarian crisis in the world.10 There is no security or stability; schools and
10 health centers are closed; and there is no safe drinking water, access to food, or electricity in
11 12 large portions of the country.
13 131. Mr. Alghazali and his wife experienced intense difficulty in Djibouti on a number of
14 levels. About a month after her interview, Mr. Alghazali’s wife went into labor in the middle of
15 the night. It took Mr. Alghazali a long time to find a taxi or an ambulance to take her to the

16 hospital. When he finally found a taxi that would take them to the hospital, his wife was already

17 in the process of delivering their baby, who was born in the taxi cab with no medical assistance.

18 Since that time, his wife has suffered physical and emotional distress because of this experience. 19 They continued to live in extremely difficult circumstances in Djibouti for months, with no 20 ability to work or to study. 21

22

23 10 See Daniel Nikbakht & Sheena McKenzie, The Yemen war is the world’s worst humanitarian crisis, UN says,

24

CNN (Apr. 3, 2018), https://www.cnn.com/2018/04/03/middleeast/yemen-worlds-worst-humanitarian-crisis-unintl/index.html; U.S. Dep’t of State, Yemen Travel Advisory (Feb. 14, 2019), https://travel.state.gov/content/travel/

en/traveladvisories/traveladvisories/yemen-travel-advisory.html.
25

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1 132. Mr. Alghazali’s entire family are U.S. citizens. All reside in the United States, except for
2 his younger sister who accompanied him to Djibouti because he is her legal guardian. She suffers
3 from a speech disability, insomnia, depression, and loss of concentration. He was unable to
4 properly provide for her in Djibouti, and she was unable to access the services she needs. 5 133. Eventually, Mr. Alghazali had to return to his job in the United States, and his wife and 6
infant son are now in Yemen, where the situation is extremely dangerous. 7
v. Malik Almathil 8
134. Plaintiff Malik Almathil is a U.S. citizen residing in New York City. 9
135. In March 2015, he petitioned for a family-based immigrant visa for his wife, a Yemeni 10
national currently residing in Jordan. The petition was approved shortly thereafter, and his wife 11 12 attended her visa interview in Djibouti on July 31, 2017. At the interview, she was informed that 13 her visa was approved. 14 136. On December 17, 2017, shortly after the Proclamation went into full effect, she received a
15 boilerplate denial of a visa and waiver.
16 137. At no point was Mr. Almathil or his wife informed that his family could seek to
17 “demonstrate” their eligibility for a waiver under the terms of the Proclamation.
18 138. At no point was Mr. Almathil or his wife provided an opportunity to apply for a waiver or
19 to submit documents in support of such application. 20 139. Mr. Almathil’s wife’s case fits within one of the examples provided in the Proclamation as 21
a situation in which a grant of a waiver may be appropriate. 22
140. Mr. Almathil is suffering severe emotional distress at his inability to be with his wife and 23
to bring her home with him to the United States. Because of the situation in Yemen, his wife had 24
to leave the country in 2015 and is unable to return. Mr. Almathil had to give up continuing his 25
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 35 of 68
1 college education in order to go be with his wife while they awaited processing of her visa
2 application, and he spent two years with her in Djibouti trying to bring her home. Because of the
3 significant expenses associated with living in Djibouti, he ultimately had to return to the United
4 States to resume earning a living so that he can provide for himself and his wife. His ongoing 5 separation from his wife is the most difficult thing he has ever had to endure. 6
141. In addition to the significant costs of living in Djibouti, Mr. Almathil has spent thousands 7
of dollars in filing fees, travel costs, and other expenses related to his wife’s visa application, 8
which he will be unable to recover. 9
vi. Khalil Ali Nagi 10
142. Plaintiff Khalil Ali Nagi is a U.S. citizen residing in Schenectady, New York with his four11 12 year-old U.S. citizen daughter. 13 143. In December 2015, he petitioned for a family-based immigrant visa for his Yemeni wife. 14 The petition was approved in 2016, and her interview was scheduled in Djibouti for July 2017.
15 The airport in Yemen was closed at that time, however, and she was unable to leave the country
16 to attend her interview, which was rescheduled for October 31, 2017. Mr. Nagi traveled with her
17 to Djibouti, where she attended the interview and was told that her application looked good and
18 that her visa would be approved.
19 144. Unable to return to Yemen and without an issued visa to the United States, Mr. Nagi, his 20 wife, and their four-year-old child remained in Djibouti to wait for her visa to be issued. But in 21
March 2018, she was informed that she would not be approved for a visa or a waiver. 22
145. Mr. Nagi had to return to the United States along with his four-year-old daughter, forced 23
to leave his wife behind. He is experiencing severe emotional distress because of their separation, 24
and his four-year-old daughter constantly cries for her mother. He feels that he is unable to comfort 25
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 36 of 68
1 her and that the distress she is suffering because of her separation from her mother is having lasting
2 negative effects on her. He is desperate to be reunited with his wife so that their family can live
3 together in their home in the United States. 4 146. Mr. Nagi has paid thousands of dollars in living expenses, travel costs, filing fees, and other 5 costs related to his wife’s visa application, which he will be unable to recover. 6
vii. Hezam Alarqaban 7
147. Plaintiff Hezam Alarqaban is a lawful permanent resident of Yemeni origin residing in 8
Oakland, California. 9
148. In March 2012, he petitioned for a family-based immigrant visa for his wife and his 10
eleven children, all of whom are Yemeni nationals. The petition was approved in 2016, and the 11 12 family had their interview at the U.S. Embassy in Malaysia in March 2016. 13 149. As the situation in Yemen deteriorated, the family moved to Djibouti in December 2016. 14 They continued to wait for issuance of their visas, which were finally stamped in their passports
15 in February 2017.
16 150. In June 2017, however, their visas were canceled and stamped “revoked without
17 prejudice.” They submitted additional documents and in October 2017, their application was
18 once again sent to the U.S. Embassy in Djibouti.
19 151. They attended another interview at the Embassy in Djibouti in February 2018 and did not 20 receive any further communication until June 2018, when they were told that their eligibility for 21
a waiver was being reconsidered. 22
152. At no point was Mr. Alarqaban or his family informed that his family could seek to 23
“demonstrate” their eligibility for a waiver under the terms of the Proclamation. 24
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1 153. At no point was Mr. Alarqaban or his family provided an opportunity to apply for a waiver

2 or to submit documents in support of such application.

3 154. Mr. Alarqaban’s family’s case fits within one of the examples provided in the Proclamation

4 as a situation in which a grant of a waiver may be appropriate.
5 155. Mr. Alarqaban has suffered and is continuing to suffer severe emotional distress at his
6 separation from his family. He is not able to afford travel to visit his family. During the entire six
7 years that they have been separated from each other, he has only been able to spend a total of two
8 months with his wife and children.
9 156. Mr. Alarqaban has incurred enormous expense supporting his family in Djibouti, where
10 cost of living is extremely high. He has also paid thousands of dollars in filing fees, travel costs,
11
12 medical fees, and other costs associated with the visa application process, which he will be
13 unable to recover.

14

viii. Abdurraouf Gseaa

15 157. Plaintiff Abdurraouf Gseaa is a U.S. citizen of Libyan origin who resides in Houston,

16 Texas. He petitioned for a family-based immigrant visa petition for his wife, who is a Libyan

17 national, in October 2016.

18 158. USCIS approved the petition and scheduled her for an interview in April 2018 at the U.S.
19 Consulate General in Casablanca, Morocco. She was unable to obtain a visa to travel to
20 Morocco, however, and the interview had to be rescheduled.
21 159. His wife’s interview was then moved to the U.S. Embassy in Tunisia, and rescheduled for
22 July 12, 2018. She attended her interview and was told that her eligibility for a waiver would be
23 considered but that it would take several months to obtain a response.
24

25
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1 160. At no point was Mr. Gseaa or his wife informed that she could seek to “demonstrate” her

2 eligibility for a waiver under the terms of the Proclamation.

3 161. At no point was Mr. Gseaa or his wife provided an opportunity to apply for a waiver or to
4 submit documents in support of such application.
5 162. Mr. Gseaa’s wife’s case fits within one of the examples provided in the Proclamation as a 6
situation in which a grant of a waiver may be appropriate. 7
163. Mr. Gseaa’s wife was alone in Libya for an extended period of time while she was 8
pregnant, and she recently gave birth to their first child. The situation in Libya is precarious and 9
the country has been ravaged by violence and war. Because of their separation and in order to 10
give himself more flexibility to spend time with her, Mr. Gseaa had to quit a stable and well11 12 paying job and has now become an Uber driver. He travels back and forth to Libya because he
13 cannot bear to leave his wife and newborn child alone. He cannot wait for the time when he can
14 bring them home and they can live together and raise their child in the United States.
15 164. Mr. Gseaa has spent thousands of dollars in attorneys’ fees, filing fees, travel costs, and

16 medical fees, which he will be unable to recover.

17

ix. Sudi Wardere

18 165. Plaintiff Sudi Wardere is a U.S. citizen of Somali origin who resides in Kirkland,
19 Washington. She petitioned for a family-based immigrant visa for her husband in October 2016.
20 Her husband is a Somali national who has resided in South Africa since 2005.
21 166. USCIS approved the visa petition on March 31, 2017, and Ms. Wardere’s husband
22 attended his interview at a U.S. Consulate General in South Africa on February 5, 2018. The
23 Consulate then interviewed him again on March 22, 2018. Since that time, they have been
24 awaiting a decision on his visa application.
25 SECOND AMENDED COMPLAINT - 38
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 39 of 68
1 167. At no point was Ms. Wardere or her husband informed that he could seek to “demonstrate”
2 his eligibility for a waiver under the terms of the Proclamation.
3 168. At no point was Ms. Wardere or her husband provided an opportunity to apply for a waiver 4 or to submit documents in support of such application. 5 169. Ms. Wardere’s husband’s case fits within one of the examples provided in the Proclamation 6
as a situation in which a grant of a waiver may be appropriate. 7
170. Ms. Wardere has suffered great hardship because of their separation from each other. On 8
May 26, 2018, she gave birth to their son, alone and without her husband’s support. Her husband 9
did not meet his child for over a year because they were unable to afford travel to South Africa 10
while they are maintaining two separate households, and Ms. Wardere cannot leave her job for 11 12 long periods of time. 13 171. Ms. Wardere was compelled to go back to work immediately after having her baby, who 14 is now in daycare. He is frequently sick and she has had to take him to the emergency room on
15 four separate occasions. She had to spend Eid-al-Fitr, one of the most important Muslim holidays,
16 without her husband, and has had enormous difficulty juggling work and being a single parent to
17 their child.
18 172. Ms. Wardere’s husband is also in a precarious situation. He owns a store in South Africa,
19 which has been closed several times because of riots. Members of the Somali community in South 20 Africa are frequently subjected to xenophobic attacks, and his store was robbed several times. 21
173. Ms. Wardere has additionally suffered emotional distress because she believes she is being 22
treated differently on account of her religion and nationality, and is not being allowed to access all 23
the privileges of being a U.S. citizen simply because of her religion and national origin. 24
25 SECOND AMENDED COMPLAINT - 39
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1 174. In addition to the costs of maintaining two households, Ms. Wardere and her husband have

2 also spent thousands of dollars in filing fees and medical fees, which they will be unable to recover.

3

x. Khadija Aden

4 175. Plaintiff Khadija Aden is a lawful permanent resident of Somali origin who resides in
5 Seattle, Washington. In October 2015, she petitioned for a family-based immigrant visa for her
6 son, who is Somali but has never been to Somalia.
7 176. Her petition was approved and her son attended his interview at the U.S. Embassy in
8 Addis Ababa, Ethiopia on June 11, 2018. His visa was denied and he received a boilerplate letter
9 stating that he is ineligible for a waiver.
10 177. At no point was Ms. Aden or her son informed that he could seek to “demonstrate” his
11
12 eligibility for a waiver under the terms of the Proclamation.
13 178. At no point was Ms. Aden or her son provided an opportunity to apply for a waiver or to

14 submit documents in support of such application.

15 179. Ms. Aden’s son’s case fits within one of the examples provided in the Proclamation as a

16 situation in which a grant of a waiver may be appropriate.

17 180. In fact, Ms. Aden’s son arguably should not even be subject to the ban, as he has never

18 been to Somalia and therefore should not be considered a Somali national. He was born in a
19 refugee camp in Ethiopia after his parents left Somalia as refugees. He has lived his entire life in
20 Ethiopia, where he resided with his father until his father died in 2015.
21 181. Ms. Aden has suffered severe emotional distress because of her separation from her son.
22 She is constantly worried about his safety and well-being, and is terrified at the prospect that he
23 would have to go back to Somalia.
24

25
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1 182. Ms. Aden has also spent thousands of dollars in attorneys’ fees, filing fees, medical costs,

2 and other expenses related to their visa application, which she will be unable to recover.

3

B. Fiancés seeking reunification in the United States

4 i.

Soheil Vazehrad and Atefehossadat Motavaliabyazani

5 183. Plaintiff Soheil Vazehrad is a U.S. citizen of Iranian origin who is employed as a registered
6 dental hygienist and resides in Napa, California.
7 184. Mr. Vazehrad filed an application with USCIS for a fiancé visa for Plaintiff Atefehossadat
8 Motavaliabyazani, an Iranian national currently in Iran, in April 2016.
9 185. USCIS approved Mr. Vazehrad's petition on May 11, 2016.
10 186. Ms. Motavaliabyazani attended her interview at the U.S. Embassy in Yerevan, Armenia,
11
12 on October 20, 2016, and was told that her case would go through routine administrative
13 processing.

14 187. On January 4, 2018, she received a boilerplate email stating:

15

Dear Applicant:

16

This is to inform you that a consular officer found you ineligible for

a visa under Section 212(f) of the Immigration and Nationality Act,

17

pursuant to Presidential Proclamation 9645. Today’s decision

cannot be appealed. 18

Taking into account the provisions of the Proclamation, a waiver

19

will not be granted in your case.

20 Ex. L, Email sent by U.S. Embassy in Yerevan, Armenia, to Atefehossadat Motavaliabyazani (Jan. 21 4, 2018).

22 188. At no point was Ms. Motavaliabyazani informed that she could seek to “demonstrate” her

23 eligibility for a waiver under the terms of the Proclamation.

24

25
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1 189. At no point was Ms. Motavaliabyazani provided an opportunity to apply for a waiver or to

2 submit documents in support of such application.

3 190. Ms. Motavaliabyazani’s case fits within one of the examples provided in the Proclamation

4 as a situation in which a grant of a waiver may be appropriate.

5 191. Mr. Vazehrad and Ms. Motavaliabyazani are suffering ongoing severe emotional and
6 mental distress because of their indefinite separation from each other.
7 192. Mr. Vazehrad is suffering from loss of consortium since he has been deprived and
8 continues to be deprived of the opportunity to be with his fiancée. He is also forced to take
9 significant breaks from work and to incur significant expenses to travel to meet his fiancée outside
10
of the United States. 11
12 193. Mr. Vazehrad and Ms. Motavaliabyazani have also paid filing fees, travel costs, and other

13 costs associated with the visa application process, which they are unable to recover.

14

C. Family members applying for visitor visas

15 i.

Bamshad Azizi, Roghayeh Azizikoutenaei, and Hojjatollah Azizikoutenaei

16 194. Plaintiff Bamshad Azizi is a lawful permanent resident of Iranian origin residing in San

17 Jose, California. He is the co-founder of a cybersecurity startup in the United States. 18 195. Mr. Azizi’s parents Plaintiffs Roghayeh Azizikoutenaei and Hojjatollah Azizikoutenaei 19 applied for B1/B211 tourist visas to come visit him and his sister in the United States. Mrs. 20

21

22 11 B1 and B2 visas are both nonimmigrant visitor visas “for persons who want to enter the United States temporarily

for business (visa category B-1), for tourism (visa category B-2), or for a combination of both purposes (B-1/B-2).”

23 U.S. Dep’t of State, Visitor Visa, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html (last
visited Feb. 22, 2019). Examples of activities permitted with a B1 visitor visa include: “Consult[ing] with business

24

associates”; “Attend[ing] a scientific, educational, professional, or business convention or conference”; “Settl[ing] an estate”; and “Negotiat[ing] a contract.” Id. Examples of activities permitted with a B2 visitor visa include:

“Tourism”; “Vacation”; “Visit[ing] with friends or relatives”; “Medical treatment”; “Participation in social events
25 hosted by fraternal, social, or service organizations”; “Participation by amateurs in musical, sports, or similar events

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 43 of 68
1 Azizikoutenaei was diagnosed with cancer about a year ago and had to undergo two surgeries
2 and a series of intense chemotherapy sessions. Mr. Azizikoutenaei had also had surgery recently.
3 They both were considerably weakened by their illnesses and wanted nothing more than to spend 4 time with their family members as they continue to recover. 5 196. Mr. and Mrs. Azizikoutenaei attended their interview at the U.S. Consulate General in 6
Dubai, UAE, on September 12, 2017, twelve days before the signing of the Proclamation, and 7
were told that their visas would be ready in two weeks. 8
197. On October 3, 2017, they received an email from the Consulate requesting that they send 9
their passports so that their visas could be stamped. They complied with this request. 10
198. Eleven days later, their passports were returned with no visas and with a letter stating that 11 12 their applications had been placed in administrative processing. 13 199. After following up multiple times with the Consulate and receiving only automated 14 responses, Mr. and Mrs. Azizikoutenaei received boilerplate rejection letters on January 10,
15 2018.
16 200. At no point were Mr. and Mrs. Azizikoutenaei informed that they could seek to
17 “demonstrate” their eligibility for a waiver under the terms of the Proclamation.
18 201. At no point were Mr. and Mrs. Azizikoutenaei provided an opportunity to apply for a 19 waiver or to submit documents in support of such application. 20 202. Accordingly, the consular officer was not made aware of the particular reasons they wanted 21
to visit their family in the United States or their recent medical circumstances. 22
23
24
or contests, if not being paid for participating”; and “Enrollment in a short recreational course of study, not for credit
25 toward a degree.” Id. SECOND AMENDED COMPLAINT - 43
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 44 of 68
1 203. Mr. and Mrs. Azizikoutenaei’s case fits within one of the examples provided in the
2 Proclamation as a situation in which a grant of a waiver may be appropriate.
3 204. The entire family has suffered and is continuing to suffer significant emotional distress 4 because of their ongoing separation from each other. Mr. and Mrs. Azizikoutenaei continue to be 5 weakened by their surgeries and medical conditions, and they and Mr. Azizi are distressed at their 6
inability to spend time with each other. 7
205. The family has also paid thousands of dollars in filing fees, travel costs, and other costs 8
associated with the visa application process, which they are unable to recover. 9
ii. Maral Charkhtab Tabrizi, Zahra Rouzbehani, and Bahram Charkhtab Tabrizi 10
206. Plaintiff Maral Charkhtab Tabrizi is a lawful permanent resident of Iranian origin 11 12 residing in Arizona who is married to a U.S. citizen and who recently had her first child. 13 207. Her parents, Plaintiffs Zahra Rouzbehani and Bahram Charkhtab Tabrizi, who have 14 traveled to the United States many times in the past, applied for tourist visas while she was
15 pregnant to witness the birth of their first grandchild and to provide support to their daughter.
16 208. They attended their interviews at the U.S. Consulate General in Dubai, UAE, on October
17 19, 2017. Ms. Rouzbehani was approved immediately, but Mr. Charkhtab Tabrizi’s case was
18 placed in administrative processing. Ms. Rouzbehani elected to wait for her husband’s
19 administrative processing to be completed before sending her passport to be stamped with the visa, 20 so that they could travel to the United States together. 21
209. Immediately after the Supreme Court allowed the Proclamation to go into effect in 22
December 2017, Ms. Rouzbehani sent her passport to the Consulate in order for her visa to be 23
issued. 24
25 SECOND AMENDED COMPLAINT - 44
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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 45 of 68
1 210. Shortly thereafter, however, the passport was returned without a visa and both their visas
2 were refused pursuant to the Proclamation.
3 211. At no point were Mr. Charkhtab Tabrizi and Ms. Rouzbehani informed that they could seek
4 to “demonstrate” their eligibility for a waiver under the terms of the Proclamation. 5 212. At no point were Mr. Charkhtab Tabrizi and Ms. Rouzbehani provided an opportunity to 6
apply for a waiver or to submit documents in support of such application. 7
213. Accordingly, the consular officer was not made aware of specific circumstances that are 8
highly relevant to a meaningful waiver adjudication. Mr. Charkhtab Tabrizi and Ms. Rouzbehani 9
wanted to be there to support their daughter for several compelling reasons: 10
214. First, Ms. Charkhtab Tabrizi’s household finances depend heavily on her salary. She is a 11 12 contractor for Google and had been there for less than 12 months at the time she gave birth to her 13 child. She therefore was not eligible for paid maternity leave under California laws or under the 14 Family Medical Leave Act, and had accordingly planned to return to work as soon as possible.
15 Without her parents, Ms. Charkhtab Tabrizi was unable to return to work as quickly as she had
16 hoped.
17 215. Second, Ms. Charkhtab Tabrizi has a connective tissue disorder which has caused her
18 severe pain during her pregnancy and makes her daily activities very difficult. She had hoped that
19 her parents could be there to support her during her recovery. 20 216. Instead, she had to remain at home with her baby by herself for two and a half months 21
while recovering from an emergency cesarean section, and during that time was diagnosed with 22
depression. She is currently unable to afford good daycare and has resorted to temporarily relying 23
on her sister-in-law to take care of her child after a period of unpaid leave during which she and 24
her husband depleted their savings. They had also been hoping that her parents could meet her in25
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1 laws for the first time when they visited, but her father-in-law has passed away in the intervening

2 time since they applied for the visa. She continues to be in desperate need of emotional and

3 logistical support from her parents.
4 217. Ms. Rouzbehani and Mr. Charkhtab Tabrizi’s case fits within one of the examples provided
5 in the Proclamation as a situation in which a grant of a waiver may be appropriate. 6
218. The denial of Ms. Rouzbehani’s and Mr. Charkhtab Tabrizi’s visas is causing Ms. 7
Charkhtab Tabrizi severe financial hardship. 8
219. All three family members have also suffered significant emotional distress. Ms. Charkhtab 9
Tabrizi was deprived of the opportunity to have her parents present during her pregnancy, and her 10
parents have been unable to be there to support her in her time of need. Ms. Rouzbehani and Mr. 11 12 Charkhtab Tabrizi were unable to be there for the birth of their first grandchild, and were unable
13 to ever meet their daughter’s father-in-law.
14 220. Ms. Charkhtab Tabrizi has also suffered increased physical pain because she has to carry
15 out daily tasks for which she would have been able to rely on her parents’ assistance.

16 221. Ms. Charkhtab Tabrizi and her parents have paid thousands of dollars in filing fees, travel

17 costs, and other costs associated with the visa application process, which they will be unable to

18 recover.

19

iii. Maryam Mozafari and Mohammad Mehdi Mozaffary

20 222. Plaintiff Maryam Mozafari is a lawful permanent resident of Iranian origin, currently

21 residing in San Francisco, California. She was pregnant and wanted her parents, her mother and
22 Plaintiff Mr. Mohammad Mehdi Mozaffary, to come visit her and provide her with much-needed
23 support.
24

25
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1 223. Her mother and Mr. Mozaffary had both visited the United States in 2014, and had left the
2 country well in advance of the expiration of their visas and their approved duration of stay in the
3 United States.
4 224. On December 28, 2016, they applied for tourist visas at the U.S. Consulate General in 5 Dubai, UAE. Her mother’s visa was granted immediately. Mr. Mozaffary was asked for his 6
mandatory military service documents. He did not have them with him, as the documents were not 7
mentioned in the list of required documents for the visa application. He was asked to reapply and 8
bring the documents with him to the next interview. 9
225. Because of the timing of the first two travel bans, Mr. Mozaffary had to delay his interview, 10
and was not able to get back to the Consulate until July 30, 2017. He was told by the consular 11 12 officer that his documents appeared to be in order, but that he would be sending Mr. Mozaffary 13 additional forms to fill out. Mr. Mozaffary received the forms in August 2017 and returned them 14 to the Consulate shortly thereafter.
15 226. For the next several months, Ms. Mozafari and Mr. Mozaffary sent several emails to the
16 Consulate to inquire about the status of their cases, but received no reply or a system-generated
17 automatic response.
18 227. On January 11, 2018, Mr. Mozaffary’s visa was denied pursuant to the Proclamation.
19 228. At no point was Mr. Mozaffary informed that he could seek to “demonstrate” his eligibility 20 for a waiver under the terms of the Proclamation. 21
229. At no point was Mr. Mozaffary provided an opportunity to apply for a waiver or to submit 22
documents in support of such application. 23
230. Mr. Mozaffary suffers from a heart condition which requires that he be accompanied at all 24
times. Because he was unable to obtain a visa, Ms. Mozafari’s mother was only able to come visit 25
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1 her in the United States for a brief time, as she felt torn between her daughter and being forced to

2 leave her ailing husband behind.

3

iv. Clyde Jean Tedrick II, Mitra Farnoodian-Tedrick, Farajollah Farnoudian, and

Farangis Emami 4

5 231. Plaintiff Clyde Jean Tedrick II is a U.S. citizen residing in Rockville, Maryland, with

6 Plaintiff Mitra Farnoodian-Tedrick, a lawful permanent resident of Iranian origin. They assisted

7 Ms. Farnoodian-Tedrick’s parents, Plaintiffs Farajollah Farnoudian and Farangis Emami, with

8 applying for tourist visas to attend their wedding celebration, which was planned for May 27, 2018.

9 232. Mr. Farnoudian and Ms. Emami have visited the United States in the past and have fully

10 complied with the terms of their tourist visas.
11 233. Mr. Farnoudian and Ms. Emami attended their visa interview on October 17, 2017 at the
12 U.S. Consulate General in Dubai, UAE.
13 234. Mr. Farnoudian’s visa application was placed in administrative processing, but Ms. 14
Emami’s visa application was approved. 15
235. Mr. Farnoudian received an email on January 8, 2018, informing him that his visa had been 16
denied pursuant to the Proclamation. 17
236. Ms. Emami’s visa, meanwhile, was revoked. She was never notified that her already18
approved visa had been revoked pursuant to the Proclamation, and she only found out that that 19 20 was the case after checking the status of her visa online.
21 237. At no point was anyone in the family informed that Mr. Farnoudian and Ms. Emami could
22 seek to “demonstrate” their eligibility for a waiver under the terms of the Proclamation.
23 238. At no point were Mr. Farnoudian and Ms. Emami provided an opportunity to apply for

24 such a waiver or to submit documents in support of such application.

25
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1 239. Mr. Tedrick and Ms. Farnoodian-Tedrick were therefore forced to cancel their planned

2 wedding celebration until such time that her parents would be able to attend.

3 240. All family members have suffered emotional distress because of their inability to celebrate

4 Mr. Tedrick and Ms. Farnoodian-Tedrick’s wedding together with their closest family members.

5 241. The family has also suffered significant financial losses. Mr. Tedrick and Ms. Farnoodian-
6 Tedrick forfeited almost $4,000 in non-refundable deposits because they were compelled to cancel
7 their planned celebration. Mr. Farnoudian and Ms. Emami also paid thousands of dollars in filing
8 fees, travel costs, and other costs associated with the visa application process, which they will be
9 unable to recover.
10
D. Business and investment visa applicants 11

12 i.

Behnam Babalou

13 242. Mr. Behnam Babalou is an Iranian national who invested five hundred thousand dollars

14 ($500,000) in the United States as part of his petition for an employment-based fifth preference

15 (EB-5) investment visa12 in 2011.

16 243. USCIS adjudicated his case and sent him an approval notice four years later, on December

17 15, 2015. Mr. Babalou then attended his immigrant visa interview at the U.S. Embassy in Yerevan,
18 Armenia, on May 24, 2016, after which his case was placed in administrative processing. 19 244. On December 22, 2017, six years after his initial investment, he received a boilerplate email 20 denying him a visa and a waiver under the Proclamation. 21

22

23 12 The EB-5 investment visa is designed to give permanent resident status to entrepreneurs (and their spouses and
unmarried children under 21) who (1) “[m]ake the necessary investment in a commercial enterprise in the United

24

States” (either $500,000 or $1 million); and (2) “[p]lan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.” U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec., EB-5 Immigrant

Investor Program, https://www.uscis.gov/eb-5 (last visited Feb. 22, 2019).
25

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1 245. At no point was Mr. Babalou informed that he could seek to “demonstrate” his eligibility

2 for a waiver under the terms of the Proclamation.

3 246. At no point was Mr. Babalou provided an opportunity to apply for a waiver or to submit
4 documents in support of such application.
5 247. His immigration attorneys have since requested that he be considered for a waiver, but he 6
has not received a response. 7
248. Mr. Babalou is at risk of losing his $500,000 investment in the United States. Because he 8
remains in Iran, he is unable to fulfill the duties assigned to him as part of running his business, 9
unable to oversee the U.S. citizens he has employed, and therefore unable to effectively grow his 10
business and continue contributing to the U.S. economy. 11 12 249. In addition to the large investment he made into a U.S. business, Mr. Babalou has incurred
13 substantial incidental costs over the last seven years, including $50,000 paid to a regional center
14 for assistance with overseeing his investment and thousands of dollars more in attorneys’ fees,
15 filing fees, travel costs, and medical fees. These are costs Mr. Babalou will be unable to recover.

16

ii. Hoda Mehrabi Mohammad Abadi

17 250. Ms. Hoda Mehrabi Mohammad Abadi is an Iranian national who invested five hundred

18 thousand dollars ($500,000) in the United States as part of her petition, filed on August 5, 2014,
19 for an employment-based fifth preference (EB-5) investment visa.
20 251. USCIS adjudicated her case and sent her an approval notice nearly two years later, on June
21 9, 2016. Ms. Mehrabi Mohammad Abadi attended her immigrant visa interview at the U.S.
22 Embassy in Yerevan, Armenia, on February 23, 2017, after which her case was placed in
23 administrative processing.
24

25
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1 252. On December 14, 2017, her attorney received the same boilerplate email denying her a visa

2 and a waiver under the Proclamation.

3 253. At no point was Ms. Mehrabi Mohammad Abadi informed that she could seek to

4 “demonstrate” her eligibility for a waiver under the terms of the Proclamation.

5 254. At no point was Ms. Mehrabi Mohammad Abadi provided an opportunity to apply for a

6 waiver or to submit documents in support of such application.

7 255. Her attorney contacted the Embassy requesting that Ms. Mehrabi Mohammad Abadi’s case
8 be considered for a waiver from the Proclamation. The Embassy responded again on December
9
17, 2017, with the following: 10

Dear inquirer, 11

12

Unfortunately, your case is not eligible for a waiver under Presidential Proclamation 9645. This refusal under Section 212(f) of

13

the Immigration and Nationality Act applies only to the current visa application. Please be advised that Presidential Proclamation 9645

14

currently restricts issuance of most visas to nationals of Iran and

seven other countries.

15 Ex. M, Email sent by U.S. Embassy in Yerevan, Armenia, to Hoda Mehrabi Mohammad Abadi
16 (Dec. 17, 2017).

17 256. Accordingly, Ms. Mehrabi Mohammad Abadi was unable to submit documents in support

18 of a waiver application and did not receive individualized consideration for a waiver.
19 257. Ms. Mehrabi Mohammad Abadi is also at risk of losing a $500,000 investment in the
20 United States. Because she remains in Iran, she is unable to fulfill the duties assigned to her as part
21 of running a business, unable to oversee the U.S. citizens she has employed, and therefore unable
22 to effectively grow her business and continue contributing to the U.S. economy.
23 258. In addition to her large investment, Ms. Mehrabi Mohammad Abadi incurred substantial
24 incidental costs, including $50,000 paid to a regional center for assistance with overseeing her
25 SECOND AMENDED COMPLAINT - 51
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1 investment and thousands of dollars more in attorneys’ fees, filing fees, travel costs, and medical

2 fees. These are costs Ms. Mehrabi Mohammad Abadi will never recover.

3

E. Individuals with extraordinary ability

4 i.

Dr. Mahdi Afshar Arjmand

5 259. Plaintiff Dr. Mahdi Afshar Arjmand is an Iranian national who filed for an employment-

6 based first preference visa for aliens with extraordinary ability (EB-1A)13 immigrant visa on
7 December 27, 2016, and received an approval notice on January 9, 2017.
8 260. He attended his immigrant visa interview with his family on July 25, 2017 at the U.S.
9
Embassy in Yerevan, Armenia. The officer informed them that their case looked good, but just 10

needed to go through administrative processing. 11

12 261. On January 12, 2018, the Embassy emailed Dr. Afshar Arjmand the same boilerplate denial

13 letter that Mr. Babalou and Ms. Mehrabi Mohammad Abadi received.

14 262. At no point was Dr. Afshar Arjmand informed that he could seek to “demonstrate” his

15 eligibility for a waiver under the terms of the Proclamation.

16 263. At no point was Dr. Afshar Arjmand provided an opportunity to apply for a waiver or to

17 submit documents in support of such application.
18 264. In order to approve his visa, USCIS made a required finding that Dr. Afshar Arjmand has 19 “extraordinary ability”—a fact that should render his entry in the national interest of the United 20 States. Dr. Afshar Arjmand had a job offer from the University of California, San Diego, to work 21

22

23 13 To qualify for an EB-1A visa an applicant “must be able to demonstrate extraordinary ability in the sciences, arts,
education, business, or athletics through sustained national or international acclaim.” U.S. Citizenship &

24

Immigration Servs., U.S. Dep’t of Homeland Sec., Employment-Based Immigration: First Preference EB-1 (last updated Oct. 29, 2015), https://www.uscis.gov/working-united-states/permanent-workers/employment-based-

immigration-first-preference-eb-1.
25

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1 as a researcher and professor. The Embassy refused to consider Dr. Afshar Arjmand for a waiver

2 even though the university sent multiple emails to the Embassy requesting that it issue Dr. Afshar

3 Arjmand's visa because of his prodigious talent and expertise.

4 265. Dr. Afshar Arjmand’s case fits within one of the examples provided in the Proclamation as

5 a situation in which a grant of a waiver would be appropriate.

6 266. Dr. Afshar Arjmand risks losing a once-in-a-lifetime research and teaching opportunity at

7 the University of California, San Diego, one of the world's leading public research universities.
8 267. In addition to this significant lost work and financial opportunity, Dr. Afshar Arjmand has
9
paid thousands of dollars in attorneys’ fees, filing fees, travel costs, and medical fees, which he 10

will be unable to recover. 11

12

ii. Dr. Ehsan Heidaryan

13 268. Plaintiff Dr. Ehsan Heidaryan, a world-renowned professor of chemical engineering and

14 an Iranian national, filed a petition for an employment-based first preference visa for aliens with

15 extraordinary ability (EB-1A) on February 7, 2017.

16 269. Based on his impressive record of achievements in his field, USCIS approved Dr.

17 Heidaryan’s petition on March 3, 2017. He attended his immigrant visa interview at the U.S.

18 Consulate General in Rio de Janeiro, Brazil, on December 23, 2017.

19 270. Thereafter, the Consulate emailed Dr. Heidaryan to inform him that since he is an Iranian

20 national, his immigrant visa must be refused because of the Proclamation. Specifically, the

21 Consulate wrote:

22 Dear Sir,

23 Unfortunately your immigrant visa is refused under Presidential

24

Proclamation 9645 and now considered closed. Do not need to fill

out the questionnaire we sent by email. 25

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1
Ex. N, Email sent by U.S. Consulate General in Rio de Janeiro, Brazil, to Dr. Ehsan Heidaryan 2 (Dec. 27, 2017).

3 271. At no point was Dr. Heidaryan informed that he could seek to “demonstrate” his eligibility
4 for a waiver under the terms of the Proclamation.
5 272. At no point was Dr. Heidaryan provided an opportunity to apply for a waiver or to submit 6
documents in support of such application. 7
273. In order to approve his visa, USCIS made a required finding that Dr. Heidaryan has 8
“extraordinary ability”—a fact that should render his entry in the national interest of the United 9
States. 10
274. Dr. Heidaryan’s case fits within one of the examples provided in the Proclamation as a 11 12 situation in which a grant of a waiver would be appropriate.
13 275. Dr. Heidaryan is losing the opportunity to conduct research and to teach in his area of
14 expertise—chemical engineering—in the United States’ top tier universities. He is also losing the
15 opportunity to take advantage of the substantial resources U.S. universities have to more

16 effectively further his research and, thus, the opportunity to contribute his expertise to the United

17 States.

18 276. Dr. Heidaryan has also paid thousands of dollars in attorneys’ fees, filing fees, travel costs,

19 and medical fees, which he is unable to recover.

20

iii. Najmeh Maharlouei

21 277. Ms. Najmeh Maharlouei is an Iranian national currently residing in Shiraz, Iran, where
22 she is employed as a health researcher and Associate Professor of Community Medicine at
23 Shiraz University of Medical Sciences. She filed an application with USCIS for an immigrant
24

25
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1 visa under the category of employment-based second preference (EB-2) with a National Interest

2 Waiver14 on June 20, 2015.

3 278. Ms. Maharlouei’s case was approved on March 4, 2016, and she attended her immigrant
4 visa interview at the U.S. Embassy in Yerevan, Armenia, on October 6, 2016. She was told at that
5 interview that there were no problems with her case, but that she would have to undergo routine 6
administrative processing. 7
279. Ms. Maharlouei received a boilerplate notice denying her visa application pursuant to the 8
Proclamation on December 22, 2017. 9
280. At no point was Ms. Maharlouei informed that she could seek to “demonstrate” her 10
eligibility for a waiver under the terms of the Proclamation. 11 12 281. At no point was Ms. Maharlouei provided an opportunity to apply for a waiver or to submit
13 documents in support of such application.
14 282. In order to approve her visa, USCIS made a required finding that Ms. Maharlouei has
15 “extraordinary ability” and granted her a National Interest Waiver, which requires a determination

16 that her entry would be in the national interest of the United States.

17 283. Ms. Maharlouei’s case also fits within one of the examples provided in the Proclamation

18 as a situation in which a grant of a waiver would be appropriate. 19 284. Ms. Maharlouei is losing the opportunity to conduct research in the United States in her 20 field of medical sciences, despite the fact that USCIS already deemed her research to be in the 21

22
14 An applicant can acquire permanent residency under the EB-2 category if she is a foreign national who has an

23 advanced degree and exceptional ability in the sciences, art, or business. U.S. Citizenship & Immigration Servs.,
U.S. Dep’t of Homeland Sec., Employment-Based Immigration: Second Preference EB-2 (last updated Oct. 29,

24

2015, https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-secondpreference-eb-2. This category usually requires that the applicant’s employer get a labor certification from the U.S.

Department of Labor, but an applicant can receive a National Interest Waiver of that requirement if she shows that
25 her work is in the U.S. national interest.

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1 national interest of the United States. Ms. Maharlouei is also losing the opportunity to take
2 advantage of American universities’ substantial resources to more effectively further her research
3 and to contribute her substantial expertise to the United States.
4 285. In addition, Ms. Maharlouei has also paid thousands of dollars in attorneys’ fees, filing 5 fees, travel costs, and medical fees, which she will be unable to recover. 6
iv. Nastaran Hajiheydari 7
286. Plaintiff Nastaran Hajiheydari is an Iranian national currently residing in Iran where she 8
works in the field of Information Technology Business as an Associate Professor at the 9
University of Tehran. She filed an application with USCIS for an immigrant visa under the 10
category of employment-based second preference (EB-2) with a National Interest Waiver on 11 12 October 14, 2016. 13 287. Her case was approved less than 40 days later in November 2016, and Ms. Hajiheydari and 14 her family attended their immigrant visa interviews at the U.S. Embassy in Yerevan, Armenia, on
15 October 26, 2017. Their cases were placed in routine administrative processing.
16 288. On January 16, 2018, Ms. Hajiheydari received a boilerplate email notice denying her and
17 her family’s visa applications pursuant to the Proclamation.
18 289. At no point was Ms. Hajiheydari informed that she could seek to “demonstrate” her
19 eligibility for a waiver under the terms of the Proclamation. 20 290. At no point was Ms. Hajiheydari provided an opportunity to apply for such a waiver or to 21
submit documents in support of such application. 22
291. In order to approve her visa, USCIS made a required finding that Ms. Hajiheydari has 23
“extraordinary ability” and granted her a National Interest Waiver, which requires a determination 24
that her entry would be in the national interest of the United States. 25
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1 292. Ms. Hajiheydari’s case fits within one of the examples provided in the Proclamation as a

2 situation in which a grant of a waiver would be appropriate.

3 293. Ms. Hajiheydari is losing the opportunity to conduct research in the United States, despite

4 the fact that USCIS already determined that her work is in the national interest of the United States.

5 Ms. Hajiheydari is also losing the opportunity to take advantage of American universities’

6 substantial resources to more effectively further her research and the opportunity to contribute her

7 expertise to the United States.
8 294. In addition, Ms. Hajiheydari has also paid thousands of dollars in attorneys’ fees, filing
9
fees, travel costs, and medical fees, for herself and three family members, all of which she will be 10

unable to recover. 11

12

v. Mohamad Hamami

13 295. Plaintiff Mohamad Hamami is a world-class Syrian violinist, composer, and conductor,

14 and is an artist of extraordinary ability in the field of Arabic fusion music. Mr. Hamami is

15 renowned internationally for his groundbreaking and unique cross-cultural fusions of Arabic

16 music with musical genres from around the globe. Mr. Hamami is the conductor and soloist with

17 the SharQ Orchestra—a one-of-a-kind Western-style ensemble of international symphony

18 musicians playing traditional Arabic music. Due to his unparalleled talent and passion for Arabic
19 fusion music, Mr. Hamami has collaborated with top producers, composers, and musicians from
20 around the globe. He submitted a petition for an EB-1 immigrant visa based on his extraordinary
21 ability.
22 296. His visa was approved in November 2016, and he had his interview at the U.S. Consulate
23 General in Dubai, UAE, where he has resided for more than a decade.
24

25
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1 297. After the ban went into effect, his attorneys attempted to request a waiver for him, but were

2 told that he is ineligible for a waiver because he has insufficient ties to the United States—a factor

3 that is neither a requirement for an EB-1 visa nor a requirement under the waiver factors set forth
4 in the Proclamation.
5 298. At no point was Mr. Hamami informed that he could seek to “demonstrate” his eligibility 6
for a waiver under the terms of the Proclamation. 7
299. At no point was Mr. Hamami provided an opportunity to apply for a waiver or to submit 8
documents in support of such application. 9
300. Mr. Hamami’s case fits within one of the examples provided in the Proclamation as a 10
situation in which a grant of a waiver may be appropriate. 11 12 301. Mr. Hamami is losing the opportunity to work with the world’s best violinists and
13 orchestras and to contribute his prodigious talent and unique musical abilities to the artistic scene
14 in the United States.
15 302. In addition, Mr. Hamami has paid thousands of dollars in attorneys’ fees, filing fees, travel

16 costs, and other costs associated with the visa application process, which he will be unable to

17 recover.

18

CLASS ALLEGATIONS

19 303. Plaintiffs bring this action as a class action pursuant to Federal Rules of Civil Procedure

20 23 on behalf of themselves and all other persons similarly situated. A class action is proper because
21 the class is so numerous that joinder of all members is impractical, this action involves questions
22 of law and fact common to the Class, Plaintiffs’ claims are typical of the claims of the Class,
23 Plaintiffs will fairly and adequately protect the interests of the Class, and Defendants have acted
24

25
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1 on grounds that apply generally to the Class, so that final injunctive relief or corresponding
2 declaratory relief is appropriate with respect to the Class as a whole.
3 304. The Plaintiff Class includes two subclasses: (i) the “Family Member Class” and (ii) the
4 “Visa Applicant Class.” See supra at 5. The Plaintiffs representing the Family Members Class are 5 Afrooz Kharazmi, Tannaz Toloubeydokhti, Dr. Najib Adi, Ismail Alghazali, Malik Almathil, 6
Khalil Ali Nagi, Hezam Alarqaban, Abdurraouf Gseaa, Sudi Wardere, Khadija Aden, Soheil 7
Vazehrad, Bamshad Azizi, Clyde Jean Tedrick II, Mitra Farnoodian-Tedrick, Maral Charkhtab 8
Tabrizi, and Maryam Mozafari. The Plaintiffs representing the Visa Applicant Class are Afshan 9
Alamshah Zadeh, Fathollah Tolou Beydokhti, Behnaz Malekghaeini, Atefehossadat 10
Motavaliabyazani, Roghayeh Azizikoutenaei, Hojjatollah Azizikoutenaei, Farajollah Farnoudian, 11 12 Farangis Emami, Zahra Rouzbehani, Bahram Charkhtab Tabrizi, Mohammad Mehdi Mozaffary, 13 Behnam Babalou, Hoda Mehrabi Abadi, Dr. Mahdi Afshar Arjmand, Dr. Ehsan Heidaryan, 14 Najmeh Maharlouei, Nastaran Hajiheydari, and Mohamad Hamami.
15 305. The Class meets the requirements of Federal Rule of Civil Procedure 23(a)(1) because it is
16 so numerous that joinder of all members is impracticable. The number of individuals who have
17 been wrongly denied waivers or whose waiver applications are being stalled is not known with
18 precision by Plaintiffs but is easily ascertainable by Defendants. On any given day, thousands of
19 visa applications are adjudicated at embassies and consulates abroad. As such, more individuals 20 will become Class members in the future, as Defendants continue to deny applicants the 21
opportunity to demonstrate their eligibility for waivers under the Proclamation. The members of 22
the Class are ascertainable and identifiable by Defendants. 23
306. The Class meets the commonality requirements of Federal Rule of Civil Procedure 23(a)(2) 24
because all Class members have been or will be subject to Defendants’ common policy, pattern, 25
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1 and practice of failing to institute clear guidance, failing to provide an accessible and meaningful
2 process by which individuals may seek consideration of their request for a waiver, and failing to
3 provide individualized, case-by-case consideration for waivers under the Proclamation to all visa 4 applicants, as required by the terms of the Proclamation. Plaintiffs and the Class share the same 5 legal claims, which include, but are not limited to: whether Defendants’ failure to consider all visa 6
applicants for waivers, their failure to issue clear guidance, and their failure to provide an 7
accessible, meaningful process by which individuals can seek to demonstrate their eligibility for a 8
waiver violate the APA and the Due Process Clause of the Fifth Amendment. 9
307. Similarly, the Class meets the typicality requirements of Federal Rule of Civil Procedure 10
23(a)(3) because the claims of the representative Plaintiffs are typical of the claims of the Class as 11 12 a whole. Plaintiffs, as with the Class they seek to represent, are all individuals who have been or 13 will be denied the chance to request a waiver under the Proclamation and who have been or will 14 be hindered from demonstrating their eligibility for a waiver because of Defendants’ failure to
15 provide clear guidance and an accessible process for submitting applications.
16 308. The adequacy requirements of Federal Rule of Civil Procedure 23(a)(4) are also met.
17 Plaintiffs know of no conflict between their interests and those of the Class. Plaintiffs seek the
18 same relief as other members of the Class, namely that the Court order Defendants to: (a) provide
19 clear guidance and an orderly process by which applicants may demonstrate their eligibility for a 20 waiver; (b) evaluate whether applicants previously denied waivers under an unlawful policy should 21
be reconsidered for a waiver grant; (c) act on waivers that have been pending for an unreasonable 22
period of time; and (d) give full consideration for case-by-case waivers to all visa applicants as set 23
forth in the Proclamation. 24
25 SECOND AMENDED COMPLAINT - 60
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1 309. (a) order Defendants to immediately cease their unlawful policy and/or practice of refusing

2 to receive or consider requests for waivers under the Proclamation for all visa applicants; (b)

3 provide an orderly process by which applicants may demonstrate their eligibility for a waiver; and

4 (c) give full consideration for case-by-case waivers to all visa applicants as set forth in the
5 Proclamation. In defending their own rights, the individual Plaintiffs will defend the rights of all
6 Class members fairly and adequately. Plaintiffs are represented by counsel with deep knowledge
7 of immigration law and civil rights law and with extensive experience litigating complex cases
8 and class actions. Counsel have the requisite level of expertise to adequately prosecute this case
9 on behalf of Plaintiffs and the Class.
10 310. The Class satisfies Federal Rule of Civil Procedure 23(b)(2) because Defendants have
11
12 acted on grounds generally applicable to the Class. Thus, final injunctive and declaratory relief is
13 appropriate with respect to the Class as a whole.

14

CLAIMS FOR RELIEF

15

FIRST CLAIM FOR RELIEF

(Violation of Administrative Procedure Act)

16 311. Plaintiffs repeat and incorporate by reference each and every allegation contained in the
17

preceding paragraphs as if fully set forth herein. 18

312. The APA prohibits federal agency action that is “arbitrary, capricious, an abuse of 19

20 discretion, or otherwise not in accordance with law,” or is conducted “without observance of

21 procedure required by law.” 5 U.S.C. § 706(2)(A) and (D).

22 313. Defendants have either failed to promulgate guidance or have promulgated guidance that

23 is arbitrary and capricious on its face in that it contradicts the terms of the Proclamation and

24 provides conflicting information to both consular officials and applicants.

25
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1 314. Defendants have further failed to follow their own policies and procedures and have put in

2 place a waiver process in which applicants are denied waivers without ever receiving notice or an

3 opportunity to apply, applicants are denied waivers without having had a consular interview since
4 the time the Proclamation went into effect, applicants are denied waivers in a manner that
5 contravenes well-established regulations including 22 C.F.R. §§ 41.121 and 42.81 and the Foreign 6
Affairs Manual, and applicants’ visa and waiver applications are indefinitely stalled. 7
315. Defendants have also failed to follow their own stated policy by failing to create an orderly 8
process for waiver applications and by failing to consider all visa applicants for a waiver. 9
316. In failing to comply with their own procedures and policies, Defendants’ actions are 10
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation 11 12 of the APA, 5 U.S.C. § 706(2)(A).
13 317. Because Defendants’ actions violate their own procedures and policies, they should be set
14 aside. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
15 318. Defendants’ violations of these laws have harmed and continue to harm Plaintiffs and

16 proposed Class members by indefinitely denying them access to their families and to economic

17 and professional opportunities.

18

SECOND CLAIM FOR RELIEF

(Violation of Procedural Due Process under the Fifth Amendment) 19

20 319. Plaintiffs repeat and incorporate by reference each and every allegation contained in the

21 preceding paragraphs as if fully set forth herein.

22 320. The Due Process Clause of the Fifth Amendment prohibits the federal government from

23 depriving individuals of their fundamental rights without due process of law.

24

25
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1 321. Family Member Plaintiffs’ fundamental rights include their right to the "integrity of the
2 family unit." Stanley v. Illinois, 405 U.S. 645, 651 (1972). This includes a cognizable liberty
3 interest in their family members’ ability to travel to the United States. See Bustamante v. Mukasey,
4 531 F.3d 1059, 1062 (9th Cir. 2008); see also Kerry v. Din, 135 S.Ct. 2128, 2139 (2018) (Kennedy, 5 J., concurring); Cardenas v. United States, 826 F.3d 1164, 1167 (9th Cir. 2016) (noting that J. 6
Kennedy’s concurrence in Din is controlling). 7
322. Congress has granted statutory rights and prescribed procedures applicable to prospective 8
immigrants and non-immigrants. Due process rights attach to those statutory rights, which create 9
cognizable liberty and property interests for both Family Member Plaintiffs and Visa Applicant 10
Plaintiffs. See Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004) (“The due process afforded 11 12 aliens stems from those statutory rights granted by Congress and the principle that ‘[m]inimum 13 due process rights attach to statutory rights.’”) (alteration in original) (quoting Dia v. Ashcroft, 353 14 F.3d 228, 239 (3d Cir. 2003). Those interests include reliance interests on the basis of which
15 Plaintiffs have spent significant resources. See Perry v. Sindermann, 408 U.S. 593, 601 (1972)
16 (mutually explicit expectations give rise to property interests).
17 323. The “very essence” of due process is the “protection of the individual against arbitrary
18 action.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 584 (1972). Any deprivation of liberty
19 and property interests must, at the very least, have a rational basis. 20 324. The waiver process Defendants have implemented is inherently arbitrary and has deprived 21
Plaintiffs of even the most minimal process that attaches to the statutory benefits conferred on 22
them by Congress. By not allowing them or their family members the opportunity to apply or be 23
meaningfully considered for a waiver, Defendants have deprived them of any opportunity to show 24
that they meet the eligibility criteria for visa categories for which they or their family members are 25
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1 eligible by statute. In doing so, Defendants have deprived Plaintiffs of protected liberty and

2 property interests without due process of law.

3 325. Defendants’ actions have therefore violated Plaintiffs’ right to procedural due process.

4 326. Defendants’ procedural due process violations have harmed and continue to harm Plaintiffs

5 and proposed Class members by indefinitely denying them access to their families and to economic

6 and research opportunities.

7 THIRD CLAIM FOR RELIEF

8

(Violation of Due Process Clause of the Fifth Amendment)

9 327. Plaintiffs repeat and incorporate by reference each and every allegation contained in the

10 preceding paragraphs as if set forth fully herein.
11 328. The Due Process Clause of the Fifth Amendment of the U.S. Constitution guarantees all
12 individuals equal protection under the law.
13 329. In Trump v. Hawaii, the Supreme Court relied centrally on the asserted existence of a 14
meaningful waiver process to find that the plaintiffs were unlikely to succeed on the merits of their 15
constitutional claims. See 585 U.S. ___, 138 S. Ct. 2392, 2422-23 (2018). In the absence of a 16
meaningful waiver process, Plaintiffs are being denied visas and waivers or are having their 17
applications indefinitely stalled based solely on their national origin or religion, without any 18
rational basis. 19 20 330. The absence of a meaningful waiver process and the blanket denials of waivers to
21 applicants from banned countries, without the opportunity to demonstrate their eligibility for a
22 waiver from the Proclamation, amount to intentional discrimination based on national origin or
23 religion, without any lawful justification.

24 331. Defendants’ conduct violates the Fifth Amendment’s guarantee of equal protection.

25
SECOND AMENDED COMPLAINT - 64 26

27

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 65 of 68

1 332. Defendants’ equal protection violations have harmed and continue to harm Plaintiffs and

2 proposed Class members by indefinitely denying them access to their families and to economic

3 and research opportunities.

4

FOURTH CLAIM FOR RELIEF

5

(Mandamus)

6 333. Plaintiffs repeat and incorporate by reference each and every allegation contained in the

7 preceding paragraphs as if fully set forth herein.

8 334. The APA requires agencies to “proceed to conclude a matter presented” to the agency

9 “within a reasonable time.” 5 U.S.C. § 555(b).
10 335. Defendants have a non-discretionary duty to develop guidance on the waiver process and
11 to receive and fully and fairly adjudicate applicants’ requests for waivers under the Proclamation
12 within a reasonable time.
13 336. The Proclamation first went fully into effect on December 4, 2017. More than a year has
14 passed and Defendants have nonetheless failed to develop meaningful guidance and a waiver
15 process by which every individual applicant may receive full consideration for a waiver.
16 337. Further, many individual Plaintiffs in this action have been awaiting decisions on their visa
17 and waiver applications for several months up to well over a year. In failing to adjudicate their
18
19 applications, Defendants have failed to act “within a reasonable time” in violation of the APA.
20 338. In addition, Plaintiffs whose family members were told at the interview that their visas
21 would be approved or who were issued visas that were later revoked pursuant to the Proclamation

22 are entitled to immediate issuance of visas. This is because the approval of their visas was reversed

23 in contravention to the explicit terms of the Proclamation and agency guidance, which provides

24

25
SECOND AMENDED COMPLAINT - 65 26

27

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 66 of 68

1 that no visas will be revoked. See Alharbi v. Miller, No. 1:18-cv-02435 (E.D.N.Y. filed April 25,

2 2018).

3 339. Because there are no other adequate remedies available to Plaintiffs, mandamus is

4 appropriate. See 5 U.S.C. § 704.

5

PRAYER FOR RELIEF

6 WHEREFORE, Plaintiffs pray that this Court:

7 1. Declare that Defendants’ actions in implementing and enforcing Section 3(c) of the
8 Proclamation have been arbitrary, capricious, and otherwise contrary to law;
9
2. Declare that Defendants’ actions in implementing and enforcing Section 3(c) of the 10

Proclamation have violated Plaintiffs’ procedural due process and equal protection rights 11

12

under the Fifth Amendment;

13

3. Order Defendants to issue guidance and develop a waiver process that does not violate the

14

APA or the constitutional guarantees of due process and equal protection and that provides

15

meaningful consideration to every individual visa applicant;

16

4. Order Defendants to evaluate whether individual and Class member applicants previously

17

denied waivers under an unlawful process should be reconsidered for a waiver grant;

18

5. Order Defendants to act on waivers that have been pending for an unreasonable period of

19

time;

20

6. Award Plaintiffs costs of suit and reasonable attorney’s fees under the Equal Access to

21 Justice Act and any other applicable law; and

22 7. Grant such other and further relief as this Court deems equitable, just, and proper.

23

DATED: February 23, 2019

24

Washington, DC

25
SECOND AMENDED COMPLAINT - 66 26

27

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 67 of 68

1 Respectfully Submitted,

2

/s/ Sirine Shebaya 3 MUSLIM ADVOCATES

4

SIRINE SHEBAYA (pro hac vice) sirine@muslimadvocates.org

5

NIMRA AZMI (pro hac vice)* nimra@muslimadvocates.org

6 JOSEPH SAEI (CA SBN 321341)* yusuf@muslimadvocates.org

/s/ Shabnam Lotfi LOTFI LEGAL, LLC SHABNAM LOTFI (pro hac vice) shabnam@lotfilegal.com VERONICA SUSTIC (pro hac vice) veronica@lotfilegal.com

7 Attorneys for Plaintiffs
8 * Not admitted to practice in DC; supervised by members of the DC bar
9

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SECOND AMENDED COMPLAINT - 67 26

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Case 3:18-cv-01587-JD Document 75 Filed 02/23/19 Page 68 of 68

1 CERTIFICATE OF SERVICE
2
I hereby certify that on February 23, 2019, I electronically filed the foregoing document 3 with the Clerk of the Court using CM/ECF. I also certify that the foregoing document should
automatically be served this day on all counsel of record via transmission of Notices of 4 Electronic Filing generated by CM/ECF.

5

/s/ Sirine Shebaya

6

Sirine Shebaya (pro hac vice)

Attorney for Plaintiffs

7 SIRINE SHEBAYA (pro hac vice)

8

sirine@muslimadvocates.org

Muslim Advocates

9

P.O. Box 34440

Washington, DC 20043

10

Telephone: (202) 897-2622

Facsimile: (202) 508-1007 11

12

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SECOND AMENDED COMPLAINT - 68 26

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 Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 1 of 30

1 JOSEPH H. HUNT Assistant Attorney General
2 Civil Division AUGUST E. FLENTJE
3 Special Counsel WILLIAM C. PEACHEY
4 Director, Office of Immigration Litigation District Court Section
5 GISELA A. WESTWATER Assistant Director, Office of Immigration Litigation
6 District Court Section STACEY I. YOUNG
7 Senior Litigation Counsel, Office of Immigration Litigation District Court Section
8 P. ANGEL MARTINEZ Trial Attorney, Office of Immigration Litigation
9 DAVID KIM Trial Attorney, Office of Immigration Litigation
10 Ben Franklin Station, P.O. Box 878
11 Washington, DC 20044 Telephone: (202) 532-4094
12 Email: david.kim4@usdoj.gov

13

14

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

15 FARANGIS EMAMI, et al.,

Case No. 3:18-cv-01587-JD

16 Plaintiffs,

17 v.

18

KEVIN K. MCALEENAN, In His Official

19 Capacity As Acting Director of the Department of Homeland Security, 1 et al.,

20

Defendants.

21

DEFENDANTS’ NOTICE OF MOTION; MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT; AND MEMORANDUM IN SUPPORT Judge: Hon. James Donato Hearing: July 25, 2019, 10 a.m. Place: San Francisco U.S. Courthouse,
Courtroom 11, 19th Floor

22

23

24

25

26

27 1 Under Fed. R. Civ. P. 25(d), Acting Director Kevin K. McAleenan, in his official capacity, is substituted for his
predecessor, Kirstjen M. Nielsen.
28

DEFENDANTS’ MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT 3:18-cv-01587-JD

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 2 of 30

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION TO DISMISS ....................................................................... iii
3

MEMORANDUM OF POINTS AND AUTHORITIES..................................................................... 1 4

5 I. INTRODUCTION ..................................................................................................................... 1

6 II. BACKGROUND..................................................................................................................... 3

7

A. The Proclamation’s Waiver Process................................................................................. 3

8

B. Individuals Plaintiffs’ Claims ....................................................................................... 5

9 III. STANDARD OF REVIEW ................................................................................................. 6

10 IV. ARGUMENT........................................................................................................................ 7

11

A. Motion to Dismiss......................................................................................................... 7

12

1. Plaintiffs fail to state a claim under the Accardi doctrine....................................... 7

13

2. Plaintiffs fail to state due process and equal protection claims .............................. 8

14

3. Plaintiffs fail to state a mandamus claim ................................................................ 9

15 B. Motion for Summary Judgment.................................................................................... 11

16

1. The administrative record emphatically demonstrates that the waiver process is not a

17

sham.......................................................................................................................... 11

18

a. Internal guidance............................................................................................... 12

19 b. National security vetting. .................................................................................. 15
20
c. Consular officers’ function in adjudicating waivers ......................................... 17 21

22

d. Application process........................................................................................... 20

23

e. Waiver-related statistics.................................................................................... 21

24 V. CONCLUSION ........................................................................................................................ ..25

25

26

27

28

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 3 of 30

1

TABLE OF AUTHORITIES

2 CASES
3 Alharbi v. Miller, -- F. Supp. 3d --, 2019 WL 1367758 (E.D.N.Y. Mar. 26, 2019) .......................................... 9, 19
4 Camp v. Pitts,
5 411 U.S. 138 (1973).................................................................................................................... 6

6 City & Cnty. of San Francisco v. United States, 130 F.3d 873 (9th Cir. 1997) ...................................................................................................... 6
7 Hawaii v. Trump,
8 138 S. Ct. 2392 (2018)....................................................................................................... passim

9 Hussein v. Beecroft, No.-17-cv-12356, 2018 WL 3574717 (E.D. Mich. July 25, 2018) ........................................................................ 11
10 I.N.S. v. Miranda,
11 459 U.S. 14 (1982).................................................................................................................... 23

12 Kleindienst v.Mandel, 408 U.S.762 (1972)..................................................................................................................... 9
13 Luo v. Coultice,
14 178 F. Supp. 2d 1135 (C.D. Cal. 2001) .............................................................................. 10, 11

15 Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) .................................................................................................... 7
16 Montilla v. I.N.S.,
17 926 F.2d 162 (2d Cir. 1991)........................................................................................................ 8

18 Nw. Motorcycle Ass’n v. U.S. Dep’t Agric., 18 F.3d 1468 (9th Cir. 1994) ...................................................................................................... 6
19 Occidental Engineering Co. v. Immigration & Naturalization Service,
20 753 F.2d 766 (9th Cir. 1985) ...................................................................................................... 6

21 Sayyadinejead v. Chertoff, No. 07-cv-0631-JAH, 2007 WL 4410356 (S.D. Cal. Dec. 14, 2007)....................................... 23
22 Singh v. Still,
23 470 F. Supp. 2d 1064 (N.D. Cal. 2007) .................................................................................... 23

24 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).................................................................................................................... 9
25 United States ex rel. Accardi v. Shaughnessy,
26 347 U.S. 260 (1954)................................................................................................................ 1, 7

27

28
DEFENDANTS’ MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT 3:18-cv-01587-JD
i

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 4 of 30

1

STATUTES

5 U.S.C. § 555(b) .......................................................................................................................... 11

2

5 U.S.C. § 706................................................................................................................................. 6 3

5 U.S.C. § 706(2)(A)....................................................................................................................... 6 4

5 U.S.C. §§ 702............................................................................................................................... 6 5

8 U.S.C. § 1182(f)............................................................................................................... 5, 13, 21 6

8 U.S.C. § 1185(b) ........................................................................................................................ 19 7

8 U.S.C. § 1201(a)(1).................................................................................................................... 14 8

9

REGULATIONS 22 C.F.R. § 42.81(e)...................................................................................................................... 21

10 22 C.F.R. §§ 41.111 ...................................................................................................................... 14

11 22 C.F.R. §§ 41.121 & 42.81.......................................................................................................... 8

12

RULES

13 Fed. R. Civ. P. 25(d) ....................................................................................................................... 0

14

15

16

17

18

19

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21

22

23

24

25

26

27

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DEFENDANTS’ MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT 3:18-cv-01587-JD
ii

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 5 of 30

1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on July 25, 2019, at 10:00 a.m., before the Honorable James

3 Donato of the United States District Court for the Northern District of California, in Courtroom

4 11 of the 19th Floor of the Philip E. Burton Courthouse and Federal Building, 450 Golden Gate

5 Avenue, San Francisco, California, Defendants will move this Court to dismiss all claims in this

6 case or, alternatively, for summary judgment in Defendants’ favor.

7

Defendants’ motion is being made pursuant to Rules 12(b)(6) and 56 of the Federal Rules

8 of Civil Procedure. The bases for this are set forth more fully in the following Memorandum of

9 Points and Authorities.

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Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 6 of 30

1
2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This is an unusual action—Plaintiffs bring what they plead as an APA claim to challenge

4 the implementation of the waiver provision in Presidential Proclamation 9645, 82 Fed. Reg. 45161

5 (Sept. 24, 2017), which the Supreme Court recently upheld in Hawaii v. Trump, 138 S. Ct. 2392

6 (2018). But Plaintiffs identify no agency policy that they claim is invalid or improper, and they

7 challenge individual waiver denials despite the doctrine of consular nonreviewabilty. Plaintiffs

8 assert that the waiver process is “a sham”—essentially a process that is not being implemented at

9 all. This Court recognized the unusual nature of this APA claim in its motion to dismiss ruling.

10 See Dkt. No. 74. This Court explained that the only viable inquiry was into whether the State
11 Department was in fact implementing the waiver provision pursuant to guidance issued to
12 implement the Proclamation. The government’s record answers this question definitively and in 13 the affirmative: the State Department has issued detailed guidance to its consular officers and 14 continues to update that guidance to assist them in processing waiver requests. And those officers 15 are carrying out their duties in good faith, authorizing thousands of waivers and conducting
burdensome and time-consuming national security vetting on many thousands more. The status of 16
the individual Plaintiff cases shows this process is ongoing. Because the process is not a sham, and 17
guidance has been issued, this Court should grant summary judgment to Defendants. 18
This Court partially dismissed this matter in February. The Court allowed Plaintiffs’ 19 Administrative Procedure Act (APA) challenge to proceed in a limited way, based on its finding 20 that Plaintiffs stated a claim under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 21 (1954), finding that “the heart of the APA claim is that the State Department has acted arbitrarily 22 and unlawfully by disregarding its own procedures and rules in administering the waiver program.”
23 See Dkt. No. 74 at 13-16. The Court dismissed Plaintiffs’ constitutional claims, holding that
24 Plaintiffs failed to allege any constitutionally protected fundamental right, Dkt. No. 74 at 16-17,

25 and that Hawaii precludes their argument that a high proportion of waiver denials could constitute

26 inherently unconstitutional discrimination. Id. at 17. The Court also dismissed Plaintiffs’

27 mandamus claim as redundant.

28

Plaintiffs new complaint should be dismissed for largely the same reasons. First, Plaintiffs’

1

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 7 of 30

1 Accardi claim, unless very narrowly focused on whether the waiver process is being implemented 2 at all, is too amorphous and does not specifically allege that any particular aspect of the process 3 violates the Proclamation or State Department guidance. Further, the Proclamation and its 4 implementing guidance are neither regulations nor internal documents that create procedural
5 rights. Second, Plaintiffs’ due process, equal protection, and mandamus claims have already been
6 resolved by this Court and have not substantively changed in the new complaint.

7

Should the Court deny the instant motion to dismiss, Defendants, in the alternative, move

8 for summary judgment based on the administrative record submitted to the Court, which includes

9 the various types of guidance provided to consular officers to assist them in resolving waiver

10 requests, the factual material showing the progress made in each of the Plaintiffs’ individual cases,

11 and statistics recently provided to Congress showing the active and ongoing implementation of the

12 waiver provision. As this Court has noted, the “gravamen of the complaint” here is that the

13 government has disregarded its own guidance about visa and waiver adjudications under the

14 Proclamation “in favor of a policy of blanket denials.” See Dkt. No. 74, at 12:6-8. As this Court

15 explained, the government’s Accardi defense “puts substantial emphasis on a number of factual matters” such as “waiver reviews and approval figures” and is “properly addressed in a summary
16 judgment motion (if truly undisputed).” Id. at 16. As the accompanying certified administrative
17 record and congressional reporting shows there is no such policy of blanket denials; instead, since
18 the Proclamation went into effect, relevant agencies have issued guidance to consular officers to
19 assist them in adjudicating visa waiver requests.

20

Consular officers, moreover, have been processing and reviewing a vast number of visa

21 applications on an individualized basis: over 3,000 waiver requests granted as of the end of March.

22 An additional 12,000—over 26 percent of those considered for waivers—are undergoing security

23 vetting, which is a rigorous, time-consuming process that is fully consistent with the

24 Proclamation’s direction that waivers be granted only to those who pose no national security or

25 public safety risk given fundamental flaws in the identification infrastructure or cooperativeness

26 of the countries subject to the Proclamation, a concern the Supreme Court expressly validated.

27 There can be no real factual dispute over these processing statistics or the existence of the guidance

28 to consular officers. Indeed, Plaintiffs are unable to demonstrate any violation of law even as to

2

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 8 of 30

1 their own cases, where the record reveals that they—or their family members—have been issued 2 visas, are still undergoing consideration for waivers, or have been refused after having been found

3 ineligible for a waiver.

4

In sum, Defendants are implementing the waiver provision in an ordered and deliberate

5 way, giving due consideration not only to the demonstrated interests of individual applicants but

6 also to the abiding concerns of national security and public safety that gave rise to the Proclamation

7 in the first place. Simply put, there is no viable allegation that Defendants have not implemented

8 the Proclamation’s waiver process in good faith, or that the waiver process is a “sham.”

9 II. BACKGROUND

10

A. The Proclamation’s Waiver Process

11

At issue is the implementation of the Proclamation’s waiver provision. Subject to

12 exceptions not relevant here, the Proclamation suspends entry into the United States of nationals

13 of several identified countries of concern. See 82 Fed. Reg. 45161 § 2(g). A consular officer may

14 nonetheless, as a matter of discretion, “grant waivers on a case-by-case basis to permit the entry

15 of foreign nationals for whom entry is otherwise suspended.” Id. § 3(c). Notably, visa applicants

16 are not refused pursuant to the Proclamation if they are ineligible to obtain visas on other grounds

or if their applications are rejected for reasons other than the Proclamation’s entry restrictions. An 17

applicant is refused under the Proclamation only if it constitutes the sole basis for visa refusal. By 18
extension, only an applicant refused based solely on the Proclamation may be considered for a

19 waiver under it. See id. § 3(a), (c).

20

As the State Department’s publicly accessible guidance explains, there is no separate

21 application for a waiver: “An individual who seeks to travel to the United States should apply for

22 a visa and disclose during the visa interview any information that might demonstrate that he or she

23 is eligible for a waiver.” U.S. Department of State – Bureau of Consular Affairs, June 26 Supreme

24 Court Decision on Presidential Proclamation 9645 (“State Dep’t Website”), available at

25 https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-

26 proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html

27 (last visited June 11, 2019); A.R. 296, 299, 306, 309, 317, 319. This is consistent with other visa-

28 application procedures, such as nonimmigrant visa waivers, which do not have a separate

3

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 9 of 30

1 application. See Foreign Affairs Manual (“FAM”) 305.4-3, available at 2 https://fam.state.gov/fam/09FAM/09FAM030504.html. The Proclamation sets out a non3 exhaustive list of examples elucidating when a waiver “may be appropriate,” while emphasizing 4 that “[c]ase-by-case waivers may not be granted categorically.” 82 Fed. Reg. at 45168-69,
5 § 3(c)(iv). The Proclamation mandates that “[t]he Secretary of State and the Secretary of
6 Homeland Security shall coordinate to adopt guidance addressing the circumstances in which

7 waivers may be appropriate.” Id. at 45168, § 3(c). Such guidance is not required to be made public,

8 and the State Department often provides internal guidance to consular officers to avoid the risk

9 that visa applicants will misuse it. A.R. 288, 297, 308, 318.

10

Since the promulgation of the Proclamation, the State Department has provided answers

11 on its public website to a number of common questions regarding the mechanics of the waiver

12 process. See State Dep’t Website. It has also released hundreds of pages of guidance, both general

13 and in specific cases. See, e.g., A.R. 13-155; U.S. Department of State, Virtual Reading Room 14 Documents Search Results.2 This Court has previously noted that such online postings constitute

15 the State Department’s outward-facing guidance on the waiver process. Dkt. No. 74, at 14:18-19.

16

The internal waiver guidance that has been promulgated, and submitted in the

17 administrative record for this Court’s review, consists of several types of material. First, updates

18 to the Foreign Affairs Manual have provided visa adjudication guidance to consular officers by

19 the State Department. A.R. 3-11. Second, detailed operational Q&As have addressed specific

20 issues that might arise in applying the Proclamation and its waiver provisions, and are updated on

21 a rolling basis. A.R. 13-155. Third, cables have regularly been issued to consular posts, as the State

22 Department has endeavored to ensure that its personnel are in full compliance with the

23 Proclamation. A.R. 157-98. Fourth, various training materials have been produced for the benefit

24 of consular officers, including presentations, flowcharts, and reference guides. A.R. 200-84,

25 327-45. Fifth, press guidance has laid out waiver-related issues suitable for explanation to the

26 public. A.R. 286-325.

27

28

2 Available at https://foia.state.gov/Search/results.aspx?searchText=Presidential+Proclamation+9645&beginDate =20170901 &endDate=20190612&publishedBeginDate=&publishedEndDate=&caseNumber=.

4

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 10 of 30

1

A waiver may be granted only if an applicant shows the following: (1) denying entry would

2 cause undue hardship, (2) entry would be in the national interest of the United States, and (3) entry

3 would not pose a threat to the national security or public safety of the United States. 82 Fed. Reg.

4 at 45168, § 3(c). As of March 31, 2019, 3,071 visa applicants have been given waivers and issued

5 visas. See Dep’t of State Report to Congress: Implementation of Presidential Proclamation 9645 –

6 December 8, 2017, to March 31, 2019 (“State Dep’t Report”).3 While the first two prongs of waiver

7 eligibility may be readily resolved based on the materials submitted by the applicant, an analysis

8 of the third prong can prove time-consuming because the applicant must be carefully vetted in

9 light of the identity sharing problems identified as the basis for the Proclamation. As of March 31,

10 2019, more than 12,000 visa applicants had been found by consular officers to preliminarily meet

11 the first two conditions for a waiver and are now under review to determine whether they meet the

12 national security and public safety criterion. See id.

13

Visa applicants who are refused under the Proclamation are handed notices by consular

14 officers indicating that they are ineligible for a visa under 8 U.S.C. § 1182(f) and a consular officer

15 is reviewing their eligibility for a waiver under the Proclamation. See A.R. at 10, 11, 29-30, 57-58, 87-88, 119-20, 151-53, 340-41. The notices describe the three criteria that must be met for a waiver
16 approval, and advise applicants that, during this potentially lengthy process, their applications will
17 remain refused under § 1182(f) until the consular officer has made an individualized determination
18 on those three factors. See id.
19 B. Individual Plaintiffs’ Claims

20

Plaintiffs include U.S. citizens and lawful permanent residents who filed family-based visa

21 petitions on behalf of one or more beneficiaries, or whose family members are visa applicants.

22 SAC ¶¶ 11, 12, 16-45, 95-302, 304. Plaintiffs also include unadmitted and nonresident aliens who

23 applied for and were denied visas under the Proclamation. Id.

24

In all, 26 Plaintiffs are seeking waivers in this action. One Plaintiff has been issued an

25 immigrant visa based on a finding that she was eligible for a waiver. A.R. at 347-59 ¶ 12. One

26 Plaintiff had a visa application refused for a reason unrelated to the Proclamation. Id. ¶ 21. Twelve

27

28

3 Available at https://travel.state.gov/content/dam/visas/presidentialproclamation/Combined%20-%20Report%20on %20Implementation%20of%20PP%209645%20December%2007%202017%20to%20March%2031%202019.pdf.

5

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 11 of 30

1 Plaintiffs, whose visa applications were refused under the Proclamation, have been advised that 2 they do not qualify for a waiver. Id. ¶¶ 5, 6, 18, 19, 20, 23, 24, 25, 26, 27, 28, 29. The remaining 3 twelve Plaintiffs have been preliminarily found to meet the first two waiver prongs—undue 4 hardship and national interest—and are among the group of more than 12,000 applicants who are
5 undergoing national security vetting, but for whom a final decision has not been made. Id. ¶¶ 4, 7,
6 8, 9, 10, 11, 13, 14, 15, 16, 17, 22. While national security vetting is ongoing, these Plaintiffs’ visa

7 applications remain properly refused under the Proclamation.

8

Plaintiffs claim that their visa applications and waivers were either inappropriately denied

9 or have been pending too long, which they attribute to an alleged “blanket denial” policy, SAC

10 ¶¶ 3, 5, 7; a failure to issue or follow internal policies and procedures, id. ¶ 1-2, 314; a failure to

11 create a separate process for waiver applications, id. ¶ 315; and various constitutional theories, id.

12 ¶¶ 122, 173, 319-32.

13 III. STANDARD OF REVIEW

14

The APA provides for judicial review of final agency action. See 5 U.S.C. §§ 702, 704. It

15 authorizes courts to “hold unlawful and set aside” only those agency actions, findings, and

16 conclusions it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in

17 accordance with the law.” 5 U.S.C. § 706(2)(A). The administrative record is the exclusive basis

18 for the Court’s review. See id. at 743-44 (1985) (“The task of the reviewing court is to apply the

19 appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record

20 the agency presents to the reviewing court.”); Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam)

21 (“the focal point for judicial review should be the administrative record in existence, not some new

22 record made initially in the reviewing court”).

23

Summary judgment under Rule 56 is appropriate to resolve APA challenges. See Nw.

24 Motorcycle Ass’n v. U.S. Dep’t Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). Even if the parties

25 dispute the facts before the administrative agency, “the function of the district court is to determine

26 whether or not as a matter of law the evidence in the administrative record permitted the agency

27 to make the decision it did.” Occidental Engineering Co. v. Immigration & Naturalization Service,

28 753 F.2d 766, 769 (9th Cir. 1985); see also City & Cnty. of San Francisco v. United States, 130

6

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 12 of 30

1 F.3d 873, 877 (9th Cir. 1997).

2 IV. ARGUMENT

3

A. Motion to Dismiss

4

1. Plaintiffs’ fail to state a claim under the Accardi doctrine.

5

In its February 4, 2019 Order, the Court found that Plaintiffs stated a claim under Accardi,

6 347 U.S. 260, and “the heart of the APA claim is that the State Department has acted arbitrarily

7 and unlawfully by disregarding its own procedures and rules in administering the waiver program.”

8 See Dkt. No. 74 at 13-16. This Court, however, did not have the benefit of detailed briefing from

9 the Government on Accardi. That claim should now be dismissed because such a claim is too

10 amorphous when Plaintiffs do not challenge any specific agency action as violative of agency

11 policy, and the Proclamation and its implementing internal guidance are neither regulations nor

12 internal documents that create procedural rights.

13

As an initial matter, even if Accardi’s directive that an agency must follow its own

regulations may make sense when analyzing a specific agency action, it makes little sense when 14
there is no final agency action subject to review, which is the case here given consular non-

15 reviewability. Accardi—even where it applies—is not a license to engage in roving oversight of

16 an agency’s implementation of a regulatory scheme, and there are no cases where it has been

17 applied in the manner Plaintiffs seek to apply it here. See Order at 18 (recognizing a request to

18 “order defendants to fulfill their duties under the Proclamation” may be “impermissible”).

19

Further, Accardi is inapplicable here because the Proclamation is not a regulation. Accardi,

20 347 U.S. at 268. It is neither the nature nor the purpose of the Proclamation waiver provisions to

21 confer a legally enforceable benefit or right in any person, as the Proclamation itself expressly

22 acknowledges. Proclamation, § 9(c). Moreover, the implementing guidance, including the Foreign

23 Affairs Manual, simply furnishes additional details regarding the waiver process, which ultimately

24 consists of discretionary determinations made by consular officers as expressly provided by the

25 Proclamation. A.R. 3-11. The Ninth Circuit has held that the Accardi doctrine is inapplicable in 26 the context most similar to this one—with respect to internal operating guidelines that preserve the 27 exercise of agency discretion as in this case. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1009 28 (9th Cir. 1987) (Operating instructions are “general statements of policy” because the instructions

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1 persevered the agency’s flexibility and opportunity to make discretionary determinations.). As the 2 Ninth Circuit explained, an Accardi claim is not viable where a directive “leave[s] agency officials 3 free to consider the individual facts in the various cases that arise and to exercise discretion.” Id.
4 That is plainly true here given the express terms of the Proclamation and the discretion conferred

5 on consular officials.

6

Plaintiffs briefly assert that the government is failing to follow two regulations, see

7 generally SAC ¶ 314, but their own complaint shows this to be untrue. The two regulations, 22

8 C.F.R. §§ 41.121 & 42.81 mandate that a decision be made on a visa application and supported by

9 a justification. Here, every Plaintiff has received exactly what the regulations require. See, e.g.,

10 SAC Ex. L at 2, Dkt. No. 77-13 (“[A] consular officer found you ineligible for a visa under Section

11 212(f). . . Taking into account the provisions of the Proclamation, a waiver will not be granted in

12 your case.”); SAC ¶¶ 79, 97, 99-302; see also AR at 347-59.

13

Even assuming an Accardi claim could survive a motion to dismiss, the relief for any

14 violation of such a “regulation” under an Accardi theory would be limited to a “remand” with

15 instructions for the agency to comply with its regulations, irrespective of the outcome the agency 16 reaches on remand. Montilla v. I.N.S., 926 F.2d 162, 169 (2d Cir. 1991). But for those who were
denied a visa based on the Proclamation, the agency is already considering qualification for a 17
waiver under the applicable guidelines. A.R. 347-59. The relief Plaintiffs seek goes far beyond a 18
remand and would not be appropriate on this claim. See generally SAC, Prayer for Relief at 66. 19
2. Plaintiffs fail to state due process and equal protection claims.

20

Plaintiffs’ constitutional claims are virtually identical to those this Court already rejected.

21 See Dkt. No. 74 at 16-18. Because they continue to lack merit, the Court should dismiss them.

22

First, Plaintiffs do not allege a deprivation of an interest protected by the Due Process

23 Clause, as this Court held. See Dkt. No. 74 at 16-17 (“[Plaintiffs have not alleged any

24 constitutionally protected fundamental rights” and there is no “unfettered right to reside in the

25 United States with family members who are foreign nationals”); Plaintiffs’ complaint has not

26 substantively changed on this claim. Compare SAC ¶¶ 319-21 with FAC ¶¶ 322-27 (consisting of

27 almost identical allegations). In a purported procedural due process claim, Plaintiffs now set forth

28 alleged “reliance interests” and procedural rights based on “statutory benefits” and “an opportunity

8

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1 for meaningful consideration for a waiver.” SAC ¶¶ 322, 324. But these allegations amount to the 2 same insufficient, cursory claim this Court already rejected. Dkt. No. 74 at 17 (dismissing 3 Plaintiffs’ procedural due process claim because of “Plaintiffs’ inability to allege a deprivation of 4 an interest protected by the Due Process Clause”); compare SAC ¶¶ 322-26 with FAC ¶¶ 328, 333-
5 34. The visa applicant Plaintiffs do not have a protected liberty or property interest because they
6 are “unadmitted and nonresident alien[s]” who have “no constitutional right of entry into the

7 country,” Kleindienst v. Mandel, 408 U.S. 753. 762 (1972), and “[w]hatever the procedure

8 authorized by Congress is, it is due process as far as an alien denied entry is concerned.” U.S. ex

9 rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950). Thus, even assuming that a U.S. citizen

10 spouse has a protected interest, Defendants afforded them the process due by providing a statutory

11 citation justifying the visa denials (SAC Ex. L at 2, Dkt. No. 77-13). Hawaii, 138 S. Ct. at 2419.

12 (“the Government need provide only a statutory citation to explain a visa denial”). Thus, all

13 Plaintiffs’ procedural due process claims fail.

14

Plaintiffs’ equal protection claim is also substantively identical to the one rejected by this

15 Court given that Hawaii had already resolved the relevant issues. See Dkt. No. 74 at 17 (claim

“demands assumptions unsupported by non-conclusory allegations of fact” and Supreme Court 16
has already rejected “the logic that almost-uniform denials of waivers is tantamount to denial 17
[based on] discriminatory grounds) (citing Hawaii, 138 S. Ct. at 2413-23). This Court noted that 18
“the equal protection claim would likely be subject to rational basis review” and “[t]he Supreme

19 Court . . . concluded . . . that the Government has set forth a sufficient national security justification

20 to survive rational basis review.” Id. at 18 (internal citation and quotation marks omitted); accord

21 Alharbi v. Miller, -- F. Supp. 3d --, 2019 WL 1367758 (E.D.N.Y. Mar. 26, 2019) (dismissing

22 Establishment Clause and Due Process challenges to waiver process).

23

In sum, these constitutional claims have not changed and must be dismissed. Letting these

24 claims proceed would amount to an end run around the dispositive Hawaii decision.

25

3. Plaintiffs fail to state a mandamus claim.

26

Plaintiffs set forth an asserted mandamus claim that is substantively identical to their prior

27 claim. See SAC ¶¶ 333-39. This Court has already found that a mandamus claim in this context is

28 redundant, and granted leave to amend it only as appropriate “at a later stage.” See Dkt. No. 74 at

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1 18 (“Because the APA claim will go forward, the Court dismisses plaintiffs’ mandamus claim . . . . 2 The dismissal is without prejudice to renewing at a later time, should that become appropriate 3 [including when] relevant to a discussion of the proper relief in this case.”); compare SAC ¶¶ 3334 39 with FAC ¶¶ 335-41. Therefore, the Court should likewise dismiss Plaintiffs’ mandamus claim
5 in the SAC. As we explained in our first motion to dismiss, Dkt. No. 42 at 9-11, Plaintiffs have no
6 clear right to the relief they seek, nor do Defendants have a nondiscretionary, ministerial duty to

7 perform the acts requested given that Proclamation waivers are discretionary.

8

Even putting those fundamental flaws in the mandamus claim to the side, the relief

9 requested under mandamus is not warranted. Plaintiffs ask this Court to order Defendants to:

10 (i) “develop guidance on the waiver process,” SAC at ¶¶ 335-36, Prayer for Relief ¶ 3; (ii)

11 “evaluate whether . . . applicants previously denied waivers under an unlawful process should be

12 reconsidered,” SAC at ¶ 338; (iii) and “adjudicate applicants’ requests for waivers” and

13 “immediately issue visas,” SAC at ¶ 335, 338. With respect to guidance, it has been promulgated,

14 and is included in the administrative record, as Plaintiffs acknowledge. See State Dep’t Website;

15 see, e.g., SAC at ¶ 86; Dkt. No. 77-4, 77-7. With respect to readjudicating all waiver requests, this

16 Court has already found that a request for “the retraction of all visa denials” would be

17 “impermissible.” Dkt. No. 74 at 18. And as State Department statistics show, thousands of waivers

18 have been granted and many thousands more are under active consideration. With respect to the

19 demand that Plaintiff’s individual waiver request be immediately adjudicated, this relief is

20 inapprorpiate. The language of the Proclamation emphasizes that no applicant has a “clear right”

21 to a waiver, and that it is up to consular officers, following guidance from the Secretaries of State

22 and Homeland Security, and using the time necessary to ensure themselves that each of the three

23 waiver factors are met to their satisfaction, to decide “in their discretion” if a waiver “would be

24 appropriate” in any given case. Proclamation, § 3(c). Even if the Proclamation were enforceable,

25 it does not impose any timeline by which waivers must be adjudicated. Proclamation, § 3(c); see

26 Luo v. Coultice, 178 F. Supp. 2d 1135, 1140 (C.D. Cal. 2001). But even if Plaintiffs’ claims were

27 subject to APA review under a “reasonable time” standard, which they are not, Plaintiffs fail to

28

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1 state a claim that Defendants have not acted “within a reasonable time[ ],” given Defendants’ need

2 to review thousands of applications individually to assess the national-security and public-safety

3 requirements for a waiver. 5 U.S.C. § 555(b); see Hussein v. Beecroft, No.-17-cv-12356, 2018 WL

4 3574717, at *7 (E.D. Mich. July 25, 2018); Luo, 178 F. Supp. 2d at 1140. The waiver process also

5 offers the ability to expedite processing in appopriate cases. See Moody v. Pompeo, No. 19-1151,

6 Order at 5 (D.D.C. May 13, 2019) (explaining availability of expedited processing when

7 warranted); A.R. 145 ( “[i]n urgent cases, a response from the Visa Office [to a waiver-related

8 question] can be provided within one business day, provided that the Visa Office has all the

9 information needed”). And any relief in favor of Plaintiffs will work to delay the adjudication of

10 others seeking waivers. See State Dep’t Report (12,000 waiver requests undergoing security

11 vetting). For these reasons, the Court should dismiss Plaintiffs’ mandamus claim.

12

B. Motion for Summary Judgment

13

1. The administrative record emphatically demonstrates that the waiver process

14

is not a sham.

15

Contrary to Plaintiffs’ depiction of the waiver process as “arbitrary and ad hoc,” SAC ¶ 94,

16 the administrative record shows that Defendants have applied the waiver provision in an orderly

17 way, taking deliberate measures to adhere to the Proclamation and any related guidance. The

18 waiver process is operating properly and is not a sham. This is established by the administrative

19 record, which shows that (1) the State Department has regularly issued detailed internal guidance

20 to inform consular officers’ application of the Proclamation’s waiver criteria, (2) each applicant

21 who meets the first two prongs for a waiver is properly vetted for national security or public safety

22 concerns, (3) consular officers are afforded discretion to make case-by-case waiver

23 determinations, which are not reviewable and are in any event entitled to a presumption of

24 regularity, (4) the application process is legitimate, as applicants are automatically considered for

25 waivers as part of a unitary visa application process consistent with other types of waiver requests,

26 and (5) numerous applicants, including most Plaintiffs, either have been found eligible for waivers

27 and issued visas or continue to receive administrative processing after the consular officer made a

28 preliminary finding regarding the undue hardship and national interest criteria. The record

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1 confirms, moreover, that the Accardi doctrine does not apply in this case, as consular officers do
2 in fact enjoy discretion to make waiver determinations on a case-by-case basis.
3 a. Internal guidance
4 Summary judgment is appropriate because the record shows that the waiver process is
5 being regularly implemented and is not a sham. Proof of that robust administration can first be
6 found in the guidance that the State Department has methodically prepared, and periodically
7 updated, to ensure that waiver adjudications conform to the Proclamation’s terms. See 82 Fed.
8 Reg. at 45168, § 3(c) (requiring relevant agencies to “coordinate to adopt guidance addressing the
9 circumstances in which waivers may be appropriate for foreign nationals” under the Proclamation).
10 The Department periodically circulated “Operational Q&As,” which include a detailed discussion
11 for day-to-day application of the waiver standards by consular officers, and cover specific topics
12 such as how consular officers should construe the phrase “close family member” when considering
13 an applicant’s hardship, or what might constitute “significant business or professional obligations”
14 in a consular officer’s judgment. A.R. 19-24, 38-52, 67-81, 98-113, 130-46. The Q&As and other
15 guidance documents expound how the Proclamation’s general waiver criteria should be applied by
16 consular officers in light of the specific facts presented in each case; thus, they delve into a number
17 of illustrative scenarios and hardship categories to elucidate when a consular officer might
18 reasonably find that an applicant has shown undue hardship, national interest, or the absence of
19 any threat to national security or public safety. A.R. 20-22, 43-48, 72-77, 102-08, 135-40. The
20 specificity and depth with which the Q&As treat the waiver prongs—addressing, for instance,
21 whether the spouse of “an unconsummated proxy marriage” could qualify as a close family
22 member to establish undue hardship—undercuts any claim that the government is perfunctorily
23 issuing “mass waiver denials” or purposely flouting the Proclamation’s waiver provision. A.R. 45,
24 74, 105, 137; see Dkt. No. 1 ¶ 102.
25 The same is true for internal State Department cables, many of which meticulously lay out
26 how the waiver provision should be applied. One cable, from September 25, 2017, recites discrete
27 “steps” that consular officers should follow in adjudicating visa applications, reminding them that
28
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1 an applicant can qualify for a waiver even if he did not “fit[] in any of the categories of exceptions”
2 to the Proclamation. A.R. 164-65. That cable also contains examples drawn from the Proclamation
3 to illustrate particular instances when a waiver may be warranted—for example, when an officer
4 makes the fact-specific determination that the applicant is “an individual needing urgent medical
5 care, or someone whose entry is otherwise justified by the special circumstances of the case.” A.R.
6 171; see Proclamation § 3(c)(ii)(D) (directing State Department to issue guidance addressing this
7 example of when a waiver would be appropriate). These internal cables, in addition to consistently
8 noting the availability of waivers, have been responsive to the various legal developments
9 surrounding the Proclamation. E.g., A.R. 163-64, 172, 185-86. Even after the Supreme Court
10 upheld the Proclamation as a lawful exercise of the President’s broad authority under 8 U.S.C.
11 § 1182(f), agencies have continued to refine the procedures by which their personnel, including
12 consular officers, process visa applications and regulate entry into the United States. See
13 A.R. 193-98 (Feb. 24, 2019 cable alerting consular officers of “the need to delve deeper into
14 particular applications that warrant additional scrutiny”). Indeed, the very sequence of these
15 internal cables, issued over time to ensure that consular officers are aware of and promptly account
16 for evolving extrinsic circumstances, attests to the celerity and rigor with which the Department
17 of State applied the Proclamation and its waiver provision.
18 The State Department has also periodically organized trainings, such as interactive
19 webinars, to ensure that consular officers are acquainted with the scope and purpose of waiver
20 adjudications under the Proclamation. Consistent with the individualized nature of those
21 assessments, presenters have referred to the Proclamation to clarify the parameters of the waiver
22 analysis—emphasizing, for example, that undue hardship cannot be found unless “an unusual
23 situation exists that compels immediate travel by the applicant and that delaying visa issuance and
24 the associated travel plans would defeat the purpose of travel.” A.R. 212, 235. These internal
25 presentations are consistent with the Proclamation and have provided examples and guidelines to
26 inform the factual evaluations done by consular officers prior to rendering any judgment on a
27 waiver application. Such examples and guidelines have promoted consistent, competent, and
28
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1 assured decision-making by consular officers, who must weigh whether an applicant has made a
2 sufficient showing of the three waiver criteria. See A.R. 236-45 (discussing types of hardship to
3 consider as part of the first prong and factual scenarios that might give rise to a finding of “undue”
4 hardship).
5 The presentations have been consistent with other internal guidance in requiring that
6 consular officers provide case notes explaining the specific bases for any waiver issued, including
7 “the category of waiver for which the applicant is eligible,” “the undue hardship caused by denying
8 entry during the suspension,” the national interest advanced by virtue of the waiver, and “the
9 reasons the applicant does not pose a threat to U.S. national security or public safety.” Compare
10 A.R. 227-28, with A.R. 9, 22, 23, 50, 65, 79, 110-12, 143-44, 169. The repeated emphasis on the
11 need to articulate the reasoning behind a waiver grant further confirms the robustness of the
12 process carried out by consular officers. See 8 U.S.C. § 1201(a)(1) (recognizing that the decision
13 to grant or deny a visa application, with limited exception, rests solely with the consular officer);
14 22 C.F.R. §§ 41.111, 41.121, 42.71, 42.81 (same). Additionally, the presentation materials, like
15 the Q&As and cables, have been updated over time to incorporate any issues that might be relevant
16 to consular officers and to further improve efforts to consistently analyze waivers in accordance
17 with the Proclamation’s broad mandates. See generally A.R. 200-84; see also A.R. 286 (indicating
18 that “[t]he Proclamation provides a timeframe which will allow the relevant agencies to make
19 operational adjustments and implement its provisions”). That focus on refining the ability of
20 adjudicators to assess diverse waiver claims is evident even in the interactive nature of the
21 webinars, which allow officers to ask questions through a chat box as the presentations are
22 ongoing. A.R. 201, 220 (noting that any unanswered questions would be addressed through
23 updates to the Q&As). Such ongoing refinements to the procedure of deciding waivers and
24 instructing consular officers across the world show that the process is not a sham.
25 In addition to the body of Q&As, cables, and presentations discussed above, the State
26 Department has produced an array of miscellaneous guidance documents—e.g., flowcharts,
27 sample letters, and reference guides—specific to the waiver process. A.R. 327-45. These too
28
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1 demonstrate the agency’s efforts to ensure rational, consistent decision-making by consular
2 officers. Of particular note are the flowcharts, which map out the analytical steps through which a
3 consular officer must proceed before granting or denying a waiver, and serve as useful visual aids
4 for consular officers who must consider a large number of visa applicants day in and day out.
5 A.R. 327-37. Especially relevant here is the flowchart for waiver eligibility determinations.
6 A.R. 337. While that flowchart contains redacted information that, if disclosed, would provide a
7 roadmap for applicants to potentially defeat screening protocols using fraud, it is revealing in its
8 depiction of the various considerations that bear on a consular officer’s assessment of a waiver
9 claim. Id. Plaintiffs surmise that the government has administered the waiver provision without a
10 definite plan or purpose, Dkt. No. 1 ¶ 7, but documents such as the flowchart show that the process
11 has been anything but haphazard. Contrary to their claim of an “ad hoc” approach, the waiver
12 provision has benefited from orderly administration by consular officers, who make a series of
13 detailed factual assessments before arriving at any finding of no waiver. A.R. 237.
14 b. National security vetting
15 The most time-consuming part of the waiver process is the security vetting, whereby every
16 applicant must undergo thorough vetting to ensure they do not present a national security or public
17 safety risk. That vetting—which is similar to many other vetting processes in the visa adjudication
18 system where consular officers consult law enforcement partners to help evaluate applicants—is
19 critical to achieve a fundamental purpose of the Proclamation given the identity management and
20 cooperation problems with the subject countries. 82 Fed. Reg. at 45168, § 3(c)(i)(B) (waiver may
21 be granted only if the applicant demonstrates to the consular officer’s satisfaction that “entry would
22 not pose a threat to the national security or public safety of the United States”). Vetting aliens to
23 ensure that there is no threat to national security or public safety is not a sham, and Plaintiffs’
24 complaint raises no colorable allegation that the national security vetting is illegitimate or
25 improper in any way. Thus, the part of the waiver process that causes the most delay is not in any
26 way being challenged in the operative complaint.
27 The Proclamation, from the outset, explains that the purpose of its entry restrictions is to
28
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1 remedy threats to the safety of the United States posed by the inadequate identity-management and
2 information-sharing protocols of certain identified countries. 82 Fed. Reg. at 45163, § 1(a)-(b)
3 (such “protocols and practices of foreign governments are important for the effectiveness of the
4 screening and vetting protocols and procedures of the United States,” which in turn “play a critical
5 role” in protecting U.S. “citizens from terrorist attacks and other public-safety threats”); A.R. 3.
6 The restrictions are intended to “encourage the countries to work with the United States to address
7 those inadequacies and risks so that the restrictions and limitations . . . may be relaxed or removed
8 as soon as possible,” 82 Fed. Reg. at 45164, § 1(h), as happened with Chad. A.R. 185-87, 320.
9 Short of that, however, the Proclamation contemplates that the restrictions must stay in place, “both
10 to protect national security and public safety, and to induce improvements by [the identified]
11 countries.” See Hawaii, 138 S. Ct. at 2409. The Supreme Court expressly upheld the Proclamation
12 based on this rationale. Id. at 2410.
13 A substantial portion of the guidance to consular officers concerns this security vetting—
14 and most of that is classified or law enforcement sensitive because, if disclosed, just as with
15 security vetting in other visa contexts, it would create the highest risk of providing a roadmap for
16 malign actors intent on defrauding the government to skirt the national security and public safety
17 checks. See, e.g., A.R. 9-10 (9 F.A.M. 302.14-10(E)(2) (redacted material detailing steps for
18 consular officer to take in conducting security vetting)); A.R. 39, 41-42, 50, 70-71, 79-80, 159-62
19 (same); A.R. 183 (referencing classified guidance); see also Dkt. No. ¶ 77 n.7 (discussing
20 analogous administrative processing procedures). The primary public-facing cable addressing this
21 vetting is 17 STATE 56801, with unclassified excerpts appearing at A.R. 157-162. This cable
22 shows that a substantial manual investigation by the consular officer is needed in each case, who
23 considers an exceedingly broad swath of information from interagency partners before rendering
24 a judgment as to whether the applicant poses a security threat. See A.R. 157. In doing this,
25 “consular officers must understand the specific circumstances that led to each [identified]
26 country’s designation as inadequate,” including information relating to the likelihood a passport
27 could be fraudulent, and whether the country shares information regarding identity, criminal
28
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1 history, or suspected terrorists. A.R. 157-58. Given these concerns about identity management that
2 gave rise to the Proclamation, this requires “a case by case determination to verify that an
3 applicant’s identity as recorded in a passport is bona fide and that there is no indication that he or
4 she has engaged in terrorist or criminal activities.” A.R. 157. This individual investigation is
5 “resource intensive for posts and interagency partners.” Id. The guidance makes it clear that
6 consular officials are to provide case notes assessing this factor based on their investigation and
7 consultation with partners and foreign governments. A.R. 79-80, 169. While this process is
8 “resource intensive,” it is not a “sham,” and it is one that ultimately results in a judgment made by
9 the consular officer. A.R. 157.
10 Given that the entry restrictions were introduced specifically to redress the “significant
11 gaps” in the identity-management and information-sharing practices of several countries, see 82
12 Fed. Reg. at 45164, § 1(h)(ii), it would run counter to the very purpose and design of the
13 Proclamation not to consider those gaps when adjudicating visa applications from affected foreign
14 nationals. Further, while the first two prongs can be assessed relatively quickly on the materials
15 and statements submitted by the applicant, the third component of the waiver analysis may take
16 considerably more time—challenging consular officers not only to probe the applicant’s
17 background for fraud, criminal, or terrorist concerns, but also to scrutinize the gathered evidence
18 in light of the conditions that led the applicant’s country to be “deemed ‘inadequate’ on
19 information sharing” in the first place. See A.R. 157. The patient and thorough approach adopted
20 by consular officers to investigate applicants for security concerns reflects the good faith
21 implementation of a Proclamation designed to eliminate national security risks in cases where
22 information sharing or cooperation is inadequate, and that extensive effort is not what one would
23 expect if the process were in fact a “sham.”
24 c. Consular officers’ function in adjudicating waivers
25 The central role afforded to consular officers, and the presumption of regularity that their
26 decisions enjoy, also shows that the waiver process is not a sham. Throughout the record, there is
27 a clear recognition that consular officers are authorized to make, and in fact are the ones actually
28
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1 making, waiver decisions with respect to visa applicants on a case-by-case basis. The
2 Proclamation’s direction that consular officers have discretion to adjudicate waivers is reiterated
3 throughout various internal guidance—perhaps most prominently in the Foreign Affairs Manual
4 (“FAM”), which punctuates that no waiver can be granted until the consular officer is satisfied that
5 the applicant has met all three waiver conditions.4 See A.R. 7-11. More than once, the FAM makes 6
sure to directly address consular officers while setting out waiver-related guidance, leaving no 7
uncertainty as to who is responsible for assessing waiver eligibility and adjudicating visas in 8
individual cases. See, e.g., A.R. 7 (“You must determine whether the applicant may qualify for a 9
waiver” (emphasis added)); A.R. 9 (“If the applicant qualifies for a waiver, you may issue the 10
visa.” (emphasis added)). 11
Similarly, the Q&As make plain that “Consular officers may grant waivers on a case-by12
case basis when the applicant demonstrates to the officer’s satisfaction that the [waiver] criteria 13
apply.” A.R. 19 (emphasis added). Some of the Q&As provide for consultation with supervisors 14
such as the visa chief or the consular section chief at the consular post, see A.R. 131—but those 15
supervisory personnel are generally also consular officers at the post who themselves adjudicate 16 visas and waivers.5 A.R. 19, 39, 68, 99, 131. And while consular officers may find themselves 17
consulting with interagency partners at certain points in the process—especially during the process 18
of national security vetting, where information from interagency partners is critical—they do not 19
relinquish any of their discretion in applying the waiver criteria to the applicant’s case, including 20
in relation to the third prong. A.R. 157-59. As the guidance makes clear, an applicant must 21
“demonstrate[] to the [consular] officer’s satisfaction” that her entry would pose no threat to 22
national security or public safety before a waiver can be granted. A.R. 19, 38, 67, 130-31. 23
Plaintiffs rely heavily on the uncorroborated statements of a former State Department 24
25
4 The FAM constitutes a “single, comprehensive, and authoritative source” for the State Department’s governing
26 policies and “convey[s] codified information” for agency personnel to “carry out their responsibilities in accordance
with statutory, executive and Department mandates.” See U.S. Department of State, Foreign Affairs Manual and
27 Handbook, available at https://fam.state.gov/.
5 According to the Q&As, “[s]ole consular officers do not need concurrence from their supervisor for waivers or
28 exceptions, but should seek [visa office] concurrence on their decisions to grant waivers.” A.R. 23, 50, 80, 111, 143.
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1 employee, Christopher Richardson, who alleged many months ago, in a different case, without
2 being subject to adversarial, that consular officers are shut out from the decision-making process
3 to grant or deny waivers. See generally SAC ¶¶ 3, 67, 72, 75, 90-93. According to Richardson, “it
4 is understood that there really is no waiver [process]” and consular officers are forced “to
5 determine at all possible cost” that all applicants are ineligible “to even apply for a waiver.” See,
6 e.g., Dkt. No. 77-3; SAC ¶ 91. But Richardson’s qualifications to opine on the waiver process are
7 dubious at best. Before he retired from the Department in March of 2018—just a few months after
8 the Proclamation went into effect—he served as the American Citizens Services Chief at the U.S.
9 Embassy in Madrid. Id. ¶ 155. Spain is not one of the countries of concern identified in the
10 Proclamation, nor do American citizens apply for visas as they must travel with passports. See
11 8 U.S.C. § 1185(b) (providing that “it shall be unlawful for any citizen of the United States to
12 depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid
13 United states passport”). Richardson also does not claim that he adjudicated visa applications,
14 applied the Proclamation, or ever played any part in carrying out the Proclamation’s waiver
15 provision, and his credentials suggest that he did not. In short, other than Richardson’s vague
16 conjecture that the waiver process somehow is a sham, Plaintiffs point to nothing that would allow
17 this Court to reasonably conclude that consular officers—despite all the record evidence to the
18 contrary—have been directed to deny all waiver applications and disregard the hundreds of pages
19 of guidance that are included in the administrative record.6 Richardson’s declaration was before 20
the court in Alharbi v. Miller, No. 17-cv-2435-BMC (E.D.N.Y. Apr. 25, 2018), Dkt. No. 42-2, but 21
the court dismissed that case after finding that the plaintiffs there had made no plausible or 22
particular allegations of bad faith by agency actors. Id., Dkt. No. 82, at 26. 23
Thus, while consular officers may at times have to confer with supervisors or agency 24
partners, especially with respect to the resource-intensive national security assessment, that 25
collaborative element does not alter the fact that the consular officer oversees all steps of the waiver 26

27

28

6 Plaintiffs refer to statements from other former consular officers as evidence of a fraudulent waiver process. See, e.g., SAC ¶ 89. But because Plaintiffs never identify these individuals, their alleged statements should hold no weight.

19

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 25 of 30
1 adjudication and ultimately decides in her discretion to grant or deny a waiver under the
2 Proclamation. A.R. 157.
3 d. Application process
4 The application process further confirms that implementation of the waiver provision is
5 not a sham by ensuring that all individuals subject to the Proclamation receive full consideration
6 for a waiver as a matter of course. While the waiver provision places the burden on the applicant
7 to demonstrate to the satisfaction of the consular officer that a waiver is warranted, “[t]here is no
8 separate application for a waiver. An individual who seeks to travel to the United States should
9 apply for a visa and disclose during the visa interview any information that might demonstrate that
10 he or she is eligible for a waiver.” State Dep’t Website. This unitary process, whereby applicants
11 refused visas under the Proclamation are still considered for a waiver with an opportunity to
12 provide relevant information but without any further action on their end, is consistent with the
13 terms of the Proclamation, which does not dictate any particular method by which consular officers
14 must consider waiver eligibility, but mandates only that waiver eligibility be considered. See 82
15 Fed. Reg. at 45168, § 3(c). Indeed, requiring applicants to file a separate application for a waiver,
16 with largely duplicative evidence, would burden both the applicant and the consular officer, who
17 in any case would have to interview the applicant on his larger request for a visa. An automatic
18 process, on the other hand, streamlines application processing and prevents applicants from being
19 penalized for being unfamiliar with the general framework of the Proclamation and the ways in
20 which its various parts intersect.
21 As to the argument that a separate waiver form, however onerous, could enable applicants
22 to provide more evidence in support of their claim than through a unitary visa application, the State
23 Department has made sure to give public notice that applicants, during the visa interview, should
24 disclose “any information that might demonstrate that he or she is eligible for a waiver.” State
25 Dep’t Website. Further, as amply shown above, consular officers are reminded regularly that the
26 Proclamation itself mandates that refused visa applicants be considered for waivers, and there is
27 no evidence that they have ever attempted to disobey that express directive. The first two waiver
28
20

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 26 of 30

1 prongs, in any case, can be evaluated through relatively straightforward inquiries of the

2 applicant—and the visa applicant is provided the information needed to substantiate a claim of

3 severe hardship or other compelling reason for wanting to travel to the United States.7 And should

4 the applicant still, for some reason, believe that she had been deprived of a full opportunity to

5 establish her case for a visa, the regulations allow her to present further evidence regarding her

6 eligibility to the consular officer who adjudicated his case for up to one year from the date of her

7 refusal. See 22 C.F.R. § 42.81(e).
8 Some of the named Plaintiffs allege that they submitted visa applications and were

9 interviewed on those applications before the Proclamation went into effect and thus were never

10 properly considered for waivers. Dkt. No. 81, ¶¶ 22, 77, 196, 251, 260, 278, 314. That allegation

11 is unfounded and, in any case, confuted by the record. As their individual declarations show, those

12 Plaintiffs had their applications readjudicated after the Proclamation took effect. They were

13 refused visas under 8 U.S.C. § 1182(f) pursuant to the Proclamation and automatically considered

14 for waivers. A.R. 347 60, ¶¶ 5, 6, 7, 9, 11-13, 20, 22 24, 26, 28. Some of those Plaintiffs were

15 denied waivers after failing to meet the mandatory criteria, while others are still undergoing

16 consideration for a waiver of the Proclamation’s entry restrictions. If anything, the orderly way in

17 which all Plaintiffs’ cases have been handled—irrespective of when they arose—plainly

18 demonstrates that Defendants are implementing the waiver process.

19 e. Waiver-related statistics

20 Statistics relating to the implementation of the Proclamation unmistakably demonstrate that

21 the waiver process is not a sham. According to data recently released in the quarterly State

22 Department report on the waiver process, consular officers, between December 8, 2017, and March

23

7 Because the first two waiver prongs demand an inquiry into individual facts and can best be assessed by the consular
24 officer, who is directly presented with the applicant’s evidence, it is unsurprising that much of the State Department’s

25

publicly available guidance pertain to undue hardship and national interest. See A.R. 19, 38, 67, 98, 131 (each explaining that “[t]he requirement for issuance to be in the national interest may be met if a U.S. person or entity

would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of
26 that country are lifted” (emphasis in original)). Those prongs intersect where “[t]he required level of hardship to an

applicant may vary with the level of U.S. national interest in facilitating the applicant’s travel to the United States.”
27 A.R. 140. Thus, “[w]hen assessing national interest, consular officers should consider hardship suffered by a U.S.

28

person or entity . . . . If an applicant’s travel is related to a program or policy objective of the U.S. government, then the national interest can be considered higher, and the hardship to the applicant would not need to be as severe.” Id.

21

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 27 of 30
1 31, 2019, received 178,681 visa applications from nationals of the affected countries. State Dep’t
2 Report, at 7-16. Of those, only 60,275 applications—or about a third of all applications—were
3 affected by the Proclamation. Id. And of those 60,275 affected applicants, 10,734 were refused
4 visas for reasons unrelated to the Proclamation, whereas 6,893 were issued visas under the
5 Proclamation, including 3,071 applicants as a result of a waiver. Id. at 16-20, 26-36. Those 3,071
6 individuals were granted waivers after having been found to meet all three waiver criteria—a figure
7 that represents approximately 6.7 percent of all applications considered for a waiver under the
8 Proclamation. Id. at 3. Notably, more than 12,000 applicants—or over 26 percent of those
9 considered for waivers—have been found to meet the first two waiver prongs and are currently
10 undergoing a manual “interagency security review to resolve whether their entry would not pose
11 a threat to the national security or public safety.” Id. As we have explained, it is that vetting that
12 is most time-consuming and that has led to frustration by applicants. Thus, contrary to Plaintiffs’
13 suggestion of a blanket waiver denial policy, the evidence demonstrates that there are applicants
14 currently occupying every stage of the multi-step waiver process, and proceeding through that
15 process in a structured way.
16 Plaintiffs also refer to some statistical data—from early 2018, just a few months after the
17 Proclamation went into effect—to allege that Defendants have adopted a blanket denial policy.
18 Dkt. No. 1 ¶¶ 136-54. Plaintiffs, in fact, rest much of their case on those expired statistics, arguing
19 that because “only an exceedingly small number of visa applicants are actually granted waivers,”
20 the figures “confirm that [the waiver process] is, indeed, window dressing.” Id. ¶ 138. Although
21 the referenced data in fact reveals that, even in the Proclamation’s incipiency, applicants were
22 being processed and cleared for waivers, Plaintiffs insinuate that the number of waiver grants
23 during that period was either too low or contrived. Id. ¶¶ 139-41, 145 (claiming that the
24 government “appeared to start granting waivers at a relatively faster rate” in light of developments
25 in Hawaii), 148-50. In doing so, however, Plaintiffs divorce the waiver statistics from the only
26 context in which those numbers can be properly viewed. Statistics from the very beginning of the
27 waiver process, just as the program was being developed and implemented after the Supreme Court
28
22

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 28 of 30
1 granted a stay that permitted the Proclamation to take effect in December 2017, are not
2 representative and should be given little weight by this Court. Indeed, the numerical cherry-picking
3 in which Plaintiffs engage—suggesting, for example, that the waiver process is irregular simply
4 because “less than 2% of visa applicants . . . had been granted waivers as of April 30, 2018”— is
5 based on information that the Supreme Court had before it and represents the kind of statistical
6 manipulation that the Supreme Court expressly disfavored in Hawaii. See id. at 2423 n.7. If
7 Plaintiffs had their way, this Court would be put in the untenable position of determining whether
8 the number of waiver grants, which naturally changes over time, is somehow too low—an
9 impossible task that the Court should decline to take on.
10 In citing waiver statistics to challenge the waiver process, Plaintiffs also misapprehend the
11 basic framework in which waiver adjudications take place. As discussed above, no waiver can be
12 granted until a consular officer has made an individualized determination that the applicant has
13 met the three criteria set out in the Proclamation—to wit, undue burden, national interest, and
14 national security/public safety. See 82 Fed. Reg. at 45168, § 3(c). It is a wide and exhaustive
15 undertaking—so much so that the refusal letters provided to visa applicants who remain eligible
16 for waivers forewarn that the waiver assessment “can be a lengthy process.” A.R. 10, 11, 152, 340,
17 341; see Singh v. Still, 470 F. Supp. 2d 1064, 1068 (N.D. Cal. 2007) (holding that in determining
18 whether an agency has unreasonably delayed in processing an immigration application, courts
19 typically look to “the source of the delay—e.g., the complexity of the investigation as well as the
20 extent to which the defendant participated in delaying the proceeding”). Even before the
21 Proclamation’s promulgation, case-by-case adjudications of visa petitions frequently took months,
22 in part, because of required background checks. See I.N.S. v. Miranda, 459 U.S. 14, 15, 18 (1982)
23 (finding that INS’s failure to act on immigrant visa petition for eighteen months did not constitute
24 unreasonable delay because of “the number of the applications received by the INS and the need
25 to investigate their validity”); Sayyadinejead v. Chertoff, No. 07-cv-0631-JAH, 2007 WL
26 4410356, at *6 (S.D. Cal. Dec. 14, 2007) (finding that, despite a delay of three years on account
27 of FBI background checks, USCIS and the FBI were “taking reasonable precautions as public
28
23

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 29 of 30

1 safety require[d] them to do, and [were] also doing everything possible to ensure that the [p]laintiff

2 wait[ed] no longer than necessary to receive permanent status”). Thus, while Plaintiffs complain

3 about what they deem to be excessively low numbers of waiver grants, they fail to consider that

4 those statistics are entwined with the time it takes to thoroughly complete each individual waiver

5 adjudication. And it is not unreasonable that the waiver statistics, thus far, have not been any

6 higher, where consular officers must adjudicate a daunting volume of waiver applications and

7 endeavor “to mitigate the risks” to national security and public safety that might attend any one of

8 those determinations. A.R. 169, 180.

9 Plaintiffs, in short, proffer only “selective statistics” and “anecdotal evidence” to protest

10 that “not enough individuals are receiving waivers.” See Hawaii, 138 S. Ct. at 2423 n.7. Their

11 complaint, at bottom, is rooted simply in their dissatisfaction with the rate at which consular

12 officers have adjudicated waiver applications and the number of waivers that those officers have

13 granted. Courts have declined to step in in individual cases where adjudications of similar requests

14 have taken years—this Court should likewise decline to oversee a challenging and multi-faceted

15 waiver process where many cases are delayed due to essential national security vetting. Plaintiffs’

16 claims relating to delay are far too meager to go forward, especially where they have not proffered

17 any evidence or viable claim that the government has failed to comply with its own waiver

18 guidance and procedures.

19 ***

20

Incidentally, the sound implementation of the waiver provision can also be seen in the case

21 histories of Plaintiffs themselves. Notably, one Plaintiff has been granted an immigrant visa based

22 on her qualification for a waiver. A.R. at 347-59 ¶ 12. Of the 26 plaintiffs for whom the State

23 Department compiled information regarding their visa applications, consular officers determined

24 that 12 of them met the first two waiver prongs of hardship and national interest. Id. ¶¶ 4, 7, 8, 9,

25 10, 11, 13, 14, 15, 16, 17, 22. Although further vetting with respect to the third prong remains for

26 these Plaintiffs, should the consular officers adjudicating their applications find that they would

27 not pose a threat to national security or public safety, they would likely be granted waivers, absent

28 any other eligibility concerns. Aside from one plaintiff who was refused a visa for a reason

24

Case 3:18-cv-01587-JD Document 98 Filed 06/13/19 Page 30 of 30

1 unrelated to the Proclamation, id. ¶ 21, the remaining Plaintiffs were denied waivers after having 2 failed to meet one or both of the first two waiver prongs, id. ¶¶ 5, 6, 18, 19, 20, 23, 24, 25, 26, 27, 3 28, 29. The different positions that Plaintiffs—and all other applicants covered by the 4 Proclamation—currently occupy in relation to their visa proceedings illustrate that the waiver
5 process, far from being aimless or stagnant, has been moving deliberately apace, through the

6 combined efforts of the agencies.

7

In short, the administrative record and publicly available information showing thousands

8 of granted waivers decisively refute Plaintiffs’ allegations that the State Department has not

9 followed its own guidance, or has instituted a “sham” waiver process. Defendants are entitled to

10 summary judgment on the Accardi claim—the only claim that this Court permitted to go forward

11 in its prior order.

12 V. CONCLUSION

13

For the foregoing reasons, the Court should dismiss Plaintiffs’ SAC with prejudice or grant

14 summary judgment to Defendants.

15 Dated: June 13, 2019 16

JOSEPH H. HUNT
Assistant Attorney General United States Department of Justice, Civil Division

17

AUGUST E. FLENTJE

18

Special Counsel

19

WILLIAM C. PEACHEY Director, Office of Immigration Litigation

20

District Court Section

21

By: GISELA A. WESTWATER Assistant Director, Office of Immigration Litigation

22

District Court Section

23

By: STACEY I. YOUNG

Senior Litigation Counsel, Office of Immigration Litigation

24

District Court Section

25

By: /s/ David Kim z

26

DAVID KIM P. ANGEL MARTINEZ

27

Trial Attorneys, Office of Immigration Litigation

28

25

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

FARANGIS EMAMI, et al.,

8

Plaintiffs,

9

v.

10

KIRSTJEN NIELSEN, et al.,

11

Defendants.

Case No. 18-cv-01587-JD
ORDER RE MOTION TO DISMISS Re: Dkt. No. 42

United States District Court Northern District of California

12

13

This case is a putative class action brought by thirty-six named plaintiffs against the United

14 States Department of Homeland Security, the Department of State, the agencies for Customs and

15 Border Protection and Citizenship and Immigration Services, and their senior leaders. Dkt. No.

16 34. Plaintiffs challenge the government’s conduct in connection with a waiver program that

17 would permit the entry into the United States of foreign nationals banned by Presidential

18 Proclamation 9645. This order resolves defendants’ motion to dismiss plaintiffs’ complaint,

19 which was brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 42.

20

BACKGROUND

21 I. 22

THE LEGAL CONTEXT The complaint arises out of Presidential Proclamation 9645, “Enhancing Vetting

23 Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or

24 Other Public-Safety Threats,” which President Trump signed on September 24, 2017. 82 Fed.

25 Reg. 45161 (2017) (the “Proclamation”). The President states that he issued the Proclamation

26 after ordering a “worldwide review of whether, and if so what, additional information would be

27 needed from each foreign country to assess adequately whether their nationals seeking to enter the

28 United States pose a security or safety threat.” 82 Fed. Reg. at 45161. The Secretary of

1 Homeland Security concluded from the review that “a small number of countries . . . remain

2 deficient . . . with respect to their identity-management and information-sharing capabilities,

3 protocols, and practices.” Id. To advance the “policy of the United States to take all necessary

4 and appropriate steps to encourage foreign governments to improve their information-sharing and

5 identity-management protocols and practices,” the President ordered a sharp curtailment, and in

6 some cases a complete suspension, of entry into the United States by nationals of eight countries:

7 Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id. at 45162, 45165-67.

8

The complaint focuses on Iran, Libya, Somalia, Syria and Yemen. Dkt. No. 34 ¶ 4.1 For

9 Iranian nationals, the President limited entry into the United States to holders of visas for students

10 (F and M) or exchange visitors (J), and no others. 82 Fed. Reg. at 45165. For Libyan nationals,

11 the President suspended all immigrant entry, and nonimmigrant entry on business (B-1), tourist

United States District Court Northern District of California

12 (B-2) and business/tourist (B-1/B-2) visas. Id. at 45166. For Somali nationals, the President

13 suspended all entry into the United States as immigrants, and required “additional scrutiny” of

14 nonimmigrant entry for ties to terrorist organizations or other threats to the United States. Id. at

15 45167. For nationals of Syria, entry as immigrants and nonimmigrants was suspended in toto. Id.

16 at 45166. For Yemeni nationals, entry as immigrants was suspended, as well as entry as

17 nonimmigrants on business (B-1), tourist (B-2) and business/tourist (B-1/B-2) visas. Id. at 45167.

18

The President also ordered the waiver program that is at the center of this dispute. As

19 Section 3(c) of the Proclamation provides, “a consular officer, or the Commissioner, United States

20 Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in

21 their discretion, grant waivers on a case-by-case basis . . . .” 82 Fed. Reg. at 45168. “A waiver

22 may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s

23 satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry

24 would not pose a threat to the national security or public safety of the United States; and (C) entry

25 would be in the national interest.” Id. (Sec. 3(c)(i)).

26

27

28

1 The restrictions on nationals of Chad have been lifted. Presidential Proclamation No. 9723, 83 Fed. Reg 15937 (Apr. 10, 2018).

2

1

The President directed the Secretary of State and the Secretary of Homeland Security to

2 “coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate

3 for foreign nationals seeking entry as immigrants or nonimmigrants.” Id. (Sec. 3(c)). The

4 Proclamation left the format of the guidance up to the agencies, but provided examples of

5 circumstances when a waiver would be appropriate. These situations included a foreign national

6 who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse,

7 child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully

8 admitted on a valid nonimmigrant visa,” and for whom “the denial of entry would cause . . . undue

9 hardship.” Id. at 45169 (Sec. 3(iv)(D)). They also included a “foreign national [who] seeks to

10 enter the United States for significant business or professional obligations and the denial of entry

11 would impair those obligations.” Id. (Sec. 3(iv)(C)).

United States District Court Northern District of California

12

A lawsuit brought in this circuit challenged the legality of the Proclamation, but the United

13 States Supreme Court upheld it as a proper exercise of the President’s discretion to suspend the

14 entry of aliens into the United States under Section 1182(f) of the Immigration and Nationality

15 Act. Trump v. Hawaii, 138 S.Ct. 2392, 2408 (2018). The plaintiffs had sought to enjoin the

16 Proclamation on the grounds, among others, that it was issued “for the unconstitutional purpose of

17 excluding Muslims” in violation of the Establishment Clause of the First Amendment. Id. at 2415.

18 The Supreme Court concluded that the plaintiffs were not likely to succeed on the merits. The

19 Court applied a rational basis review to find that “the entry policy is plausibly related to the

20 Government’s stated objective to protect the country and improve vetting processes.” Id. at 2420-

21 23. The Court also assumed without deciding that the plaintiffs’ statutory claims could be heard

22 notwithstanding the doctrine of consular nonreviewability. Id. at 2407.

23

The allowance for waivers in the Proclamation was an important reason why the five-

24 justice majority upheld it as serving a legitimate national security interest. The majority cited the

25 waiver program as one of “three additional features” of the President’s policy -- along with the

26 subsequent removal of restrictions on three “Muslim-majority” countries and an allowance for

27 “significant exceptions” for nonimmigrant entry -- that effectively dispelled concerns of religious

28 animus or discrimination in the Proclamation. Id. at 2422. The majority put substantial emphasis 3

1 on the fact that DHS and the State Department were directed to “issue guidance elaborating upon

2 the circumstances that would justify a waiver,” in the apparent expectation that this would

3 establish a program similar to the “humanitarian exceptions” implemented by President Carter

4 during the Iran hostage crisis. Id.

5

The four dissenting justices took a different view. Most relevant here is Justice Breyer’s

6 attention to the majority’s observations about the waiver program. He suggested that, while the

7 words might be reassuring, the incipient evidence available to the Court indicated that waivers

8 were not being granted in practice. At the least, this evidence raised a serious question about

9 whether the program was mere “window dressing.” Id. at 2432-33. This matters because, if the

10 government was not in fact actually administering the waiver program, “its argument for the

11 Proclamation’s lawfulness becomes significantly weaker.” Id. at 2430.

United States District Court Northern District of California

12 II. THE FACTUAL CONTEXT

13

That is the main legal context of the complaint. The factual circumstances are provided by

14 a number of State Department statements about the Proclamation and the waiver program that are

15 attached to the complaint and incorporated by reference, and so are properly considered for the

16 motion to dismiss. To start, on December 4, 2017, the Department posted on its website an

17 informational statement about the Proclamation that included some “Frequently Asked Questions”

18 and the answers to those questions. The post included these statements: “In accordance with the

19 Presidential Proclamation, for nationals of the eight designated countries, a consular officer will

20 make a determination whether an applicant . . . may be eligible for a waiver under the

21 Proclamation and therefore issued a visa.” Dkt. No. 34-4 (Ex. C) at ECF p. 4. “As specified in

22 the Proclamation, consular officers may issue a visa based on a listed waiver category to nationals

23 of countries identified in the PP on a case-by-case basis, when they determine: that issuance is in

24 the national interest, the applicant poses no national security or public safety threat to the United

25 States, and denial of the visa would cause undue hardship. There is no separate application for a

26 waiver. An individual who seeks to travel to the United States should apply for a visa and disclose

27 during the visa interview any information that might demonstrate that he or she is eligible for a

28 waiver.” Id. at ECF p. 6. 4

1

On April 10, 2018, the Department posted to its website about “Revisions to Presidential

2 Proclamation 9645.” Dkt. No. 34-7 (Ex. F). It explained that “[t]he new P.P. removes the visa

3 restrictions imposed on nationals of Chad by the earlier P.P.” Id. at ECF p. 2. The new statement

4 once again affirmed that “[a]s specified in the Proclamation, consular officers may issue a visa

5 based on a listed waiver category to nationals of countries identified in the PP on a case-by-case

6 basis, when they determine” the waiver factors are satisfied. Id. at ECF pp. 4-5. The revised

7 statement’s “Frequently Asked Questions” section also said that “[a]n individual who wishes to

8 apply for an immigrant visa should apply for a visa and disclose during the visa interview any

9 information that might demonstrate that he or she is eligible for an exception or waiver per the

10 Proclamation. A consular officer will carefully review each case to determine whether the

11 applicant is affected by the Proclamation and, if so, whether the case qualifies for an exception or

United States District Court Northern District of California

12 a waiver.” Id. at ECF p. 6.

13

Another “frequently asked” question posed this inquiry: “I’ve heard that the Department

14 of State does not grant waivers of the Proclamation. Is this correct?” The State Department

15 answered,

16

This information is incorrect. As specified in the Proclamation,

consular officers may issue a visa to nationals of countries covered

17

by the Proclamation with a waiver on a case-by-case basis, when

they determine: that issuance is in the national interest, the

18

applicant poses no national security or public safety threat to the

United States, and denial of the visa would cause undue hardship.

19

There is no separate application for a waiver. An individual who

seeks to travel to the United States should apply for a visa and

20

disclose during the visa interview any information that might

demonstrate that he or she is eligible for a waiver. From

21

December 8, 2017 through April 1, 2018, more than 430 applicants

were cleared for waivers after a consular officer determined the

22

applicants satisfied all criteria and completed all required

processing. Many of those applicants already have received their

23

visas.

24 Id. at ECF p. 7.

25

In addition to these comments that the State Department published on the internet, the

26 complaint attached two letters from Mary K. Waters, Assistant Secretary of Legislative Affairs at

27 the Department of State, to United States Senator Chris Van Hollen. The first, dated February 22,

28 2018, referred expressly to Section 3(c) of the Proclamation, and stated, “[t]he entry restrictions of 5

1 the Proclamation may be waived if a consular officer determines that the applicant meets each of

2 the following three criteria: (1) denying entry would cause the foreign national undue hardship;

3 (2) entry would not pose a threat to the national security or public safety of the United States; and

4 (3) entry would be in the national interest.” Dkt. No. 34-6 (Ex. E) at ECF p. 2. The letter added,

5 “[c]onsular officers may grant waivers on a case-by-case basis when the applicant demonstrates to

6 the officer’s satisfaction that he or she meets the three criteria discussed above.” Id. at ECF p. 3.

7 After addressing each criteria more specifically, Ms. Waters stated, “If the consular officer

8 determines, after consultation with the Visa Office, that an applicant does not pose a threat to

9 national security or public safety and the other two requirements have been met, a visa may be

10 issued with the concurrence of a consular manager.” Id. The letter also said that “Section 3(c)(iv)

11 of the Proclamation provides examples of the circumstances in which a waiver might be

United States District Court Northern District of California

12 appropriate. The Department’s worldwide guidance to consular officers regarding waivers is

13 drawn directly from the Proclamation. Further, consular officers may consult with the Visa Office

14 if a consular officer believes a case may warrant a waiver but the applicant’s circumstances do not

15 align with one of the examples in the Proclamation.” Id. Ms. Waters attached a chart to the letter

16 which showed that a total of 2 waivers had been approved as of February 15, 2018, out of 8,406

17 applications for nonimmigrant and immigrant visas that had been received and processed from

18 nationals subject to Proclamation 9645 between December 8, 2017, to January 8, 2018. Id. at ECF

19 p. 5. The Court’s math indicates that this amounts to an approval rate of 0.02%.2

20

Ms. Waters sent a second letter to Senator Van Hollen six months later, on June 22, 2018.

21 That letter confirmed that, “[a]s discussed in our February 22 letter, the Department’s worldwide

22 guidance to consular officers regarding when a waiver pursuant to section 3(c) of PP 9645 may be

23 granted is drawn directly from PP 9645 itself.” Dkt. No. 34-11 (Ex. J) at ECF p. 2. The letter

24 included another chart stating that, “as of April 30 unless otherwise stated,” waivers were

25 approved for “579 (768 as of May 31)” applicants out of 33,176 applications that had been

26

27

2 Ms. Waters’ chart contains a number of deductions, e.g., for “applicants refused for reasons unrelated to the Proclamation” (1,723) and “applicants who failed to meet the criteria for a

28

waiver” (6,282). But even with those deductions, out of 273 applicants who presumptively qualified for a waiver, only 2 were granted. That amounts to a 0.73% approval rate.

6

1 received “from impacted nationalities.” Id. at ECF p. 4. The Court’s math indicates that this

2 amounts to approval rates of 1.75% and 2.3%, for April 30, 2018, and May 31, 2018, 3 respectively.3

4

Other exhibits in the complaint provide additional factual background. These include a

5 declaration by a former consular officer, Christopher Richardson, Esq., who was employed by the

6 United States Department of State from 2011 to 2018, and most recently as American Citizens

7 Services Chief at the United States Embassy in Madrid, Spain. Dkt. No. 34-3 (Ex. B) ¶ 3.

8 Mr. Richardson states that he had access to “all the state department guidance, cables, sample Q’s

9 and A’s and instructions regarding” the Proclamation, and when read together, it was “understood

10 that there really is no waiver and the Supreme Court was correct to point out that the waiver is

11 merely ‘window dressing.’” Id. ¶¶ 4, 10. Furthermore, “[a]s a Consular officer previously

United States District Court Northern District of California

12 employed by the State Department [his] impression and interpretation of how we as officers were

13 to apply the waiver process was” that “we were not allowed to exercise that discretion [to grant a

14 waiver]. We were mandated to send notice to Washington that we found this applicant eligible to

15 apply and Washington would then make the decision to grant or deny the waiver.” Id. ¶ 11.

16

Plaintiffs have also provided a sample waiver denial letter from the Consular Section of the

17 United States Embassy for Yerevan, Armenia. Dkt. No. 34-10 (Ex. I). It reads, “Dear Applicant:

18 This is to inform you that a consular officer found you ineligible for a visa under Section 212(f) of

19 the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645. Today’s

20 decision cannot be appealed.” Id. The letter offers only two options for the consular officer to

21 choose. The first option states: “Taking into account the provisions of the Proclamation, a waiver

22 will not be granted in your case.” Id. The second states: “The consular officer is reviewing your

23 eligibility for a waiver under the Proclamation. . . . You will be contacted with a final

24 determination on your visa application as soon as practicable.” Id. The sample form comes with

25

26

27

3 Again, even excluding Ms. Waters’ figures for those applicants “found ineligible for reasons other than those covered in P.P. 9645” (4,900) and those applicants “who received a visa under an

28

exception from P.P. 9645” (4,900), results in waiver approval rates of 2.13% and 2.83% as of April 30, 2018, and May 30, 2018, respectively.

7

1 the first box pre-checked to show that a waiver was denied. No box is provided in the form to

2 show that a waiver has been granted.

3 III. PLAINTIFFS’ CLAIMS

4

The named plaintiffs and putative class members are United States citizens, and lawful

5 permanent residents and foreign nationals hailing from Iran, Libya, Somalia, Syria and Yemen.

6 Dkt. No. 34 ¶ 4. The complaint organizes plaintiffs into two groups. In the Family Member Class

7 are United States citizens and lawful permanent residents whose family members are subject to the

8 entry restrictions imposed by the Proclamation. Id. ¶ 11. In the Visa Applicant Class are the

9 Iranian, Libyan, Somali, Syrian and Yemeni visa applicants themselves whom the Proclamation

10 would bar from the United States absent a waiver. Id. ¶ 12.

11

The number of named plaintiffs is quite sizable, and so the Court highlights just a few

United States District Court Northern District of California

12 representative accounts of their waiver experiences as alleged in the complaint. Plaintiff Tanaz

13 Toloubeydokhti is a United States citizen of Iranian origin who lives in San Diego, California, and

14 works in obstetrics and gynecology. Dkt. No. 34 ¶¶ 98-99. In 2016, Ms. Toloubeydokhti

15 petitioned for immigrant visas for her parents, plaintiffs Fathollah Tolou Beydokhti and Behnaz

16 Malekghaeini, who are both Iranian nationals. The petitions were approved and her parents’ visa

17 interviews were scheduled for December 21, 2017, at the United States Embassy in Yerevan,

18 Armenia. Id. ¶ 100. Her parents had “put together documents they believed would demonstrate

19 that they meet the criteria for a waiver under the terms of the Proclamation.” Id. ¶ 101. But

20 “when they attempted to present those documents to the consular official, the official refused to

21 review them, stated that they did not qualify for a waiver, and stated that their visas were denied.”

22 Id. Because of the denial, Mr. Beydokhti and Ms. Malekghaeini were unable to enter the United

23 States to be with their daughter and newborn grandchild. Id. ¶ 103.

24

Plaintiff Malik Almathil is a United States citizen living in New York City who petitioned

25 in March 2015 for entry of his Yemeni wife currently residing in Jordan. Id. ¶ 132-33. The

26 petition was approved, and Mrs. Almathil attended her visa interview in Djibouti on July 31, 2017,

27 before the Proclamation went into effect. Id. ¶ 133. On December 17, 2017, soon after the

28 Proclamation was promulgated, she received “a boilerplate denial of a visa and waiver,” without 8

1 ever being given the opportunity to submit documents to demonstrate her eligibility for a waiver.

2 Id. ¶¶ 134-36. Because of the situation in Yemen, Mrs. Almathil “had to leave the country in 2015

3 and is unable to return.” Id. ¶ 138. And because Mr. Almathil had to “return to the United States

4 to resume earning a living so that he can provide for himself and his wife,” husband and wife are

5 currently living in separate countries. Id.

6

Plaintiff Ismail Alghazali is a United States citizen of Yemeni origin currently residing in

7 Djibouti. Id. ¶ 123. He petitioned for a family-based immigrant visa for his wife in mid-2016,

8 and the petition was approved in late 2016. Id. ¶ 124. She attended her interview at the United

9 States consulate in Djibouti on January 3, 2018, and “was informed immediately that her visa was

10 denied and that she would not be considered for a waiver.” Id. ¶¶ 124-25. She was never

11 informed that she could seek to demonstrate her eligibility for a waiver, nor given an opportunity

United States District Court Northern District of California

12 to submit documents in support of a waiver application. Id. ¶¶ 126-27. She was pregnant at the

13 time of her interview and gave birth (in a taxi cab with no medical assistance) about a month after.

14 Id. ¶ 130. Mr. Alghazali was forced to leave the United States and his job here so that he could be

15 with his wife and infant son in Djibouti. Id. ¶ 129.

16

Plaintiff Soheil Vazehrad is a United States citizen of Iranian origin currently residing in

17 Napa, California. Id. ¶ 181. He applied for a fiancé visa for plaintiff Atefehossadat

18 Motavaliabyazani, an Iranian national currently in Iran, in April 2016, and the petition was

19 approved in May 2016. Id. ¶¶ 182-83. Ms. Motavaliabyazani attended her interview at the United

20 States embassy in Yerevan, Armenia, on October 20, 2016, almost a year before the Proclamation

21 was issued, and on January 4, 2018, received an email identical in substance to the letter attached

22 as Exhibit I to plaintiffs’ complaint and described above. Id. ¶¶ 184-85. Like the letter, the email

23 contained only two options -- either denying a waiver or informing the applicant that “[t]he

24 consular officer is reviewing your eligibility for a waiver” -- and like the sample letter attached to

25 the complaint, the email Ms. Motavaliabyazani received had the first box checked, informing her

26 that a waiver would not be granted in her case. Dkt. No. 34-13 (Ex. L). She was never informed

27 that she could seek to demonstrate her eligibility for a waiver, nor given the opportunity to submit

28 documents in support of a waiver application. Dkt. No. 34 ¶¶ 186-87. 9

1

Plaintiff Hoda Mehrabi Mohammad Abadi is an Iranian national who invested $500,000.00

2 in the United States as part of her petition for an employment-based fifth preference (EB-5)

3 investment visa. Id. ¶ 255. Her petition was approved in June 2016, and she attended her

4 immigrant visa interview at the United States embassy in Yerevan, Armenia, on February 23,

5 2017, seven months before the Proclamation was issued. Id. ¶ 256. On December 14, 2017, “her

6 attorney received the same boilerplate email denying her a visa and a waiver under the

7 Proclamation.” Id. ¶ 257. Even after her attorney contacted the embassy requesting that

8 Ms. Mehrabi Mohammad Abadi’s case be considered for a waiver, the embassy responded,

9 “Unfortunately, your case is not eligible for a waiver under Presidential Proclamation 9645.” Id.

10 ¶ 260. Ms. Mehrabi Mohammad Abadi asserts that she consequently was “unable to submit

11 documents in support of a waiver application.” Id. ¶ 261.

United States District Court Northern District of California

12

The complaint provides similar accounts of family separation and dislocation for the other

13 named plaintiffs. On the basis of these factual allegations, plaintiffs assert three legal claims:

14 violation of the Administrative Procedure Act, 5 U.S.C. § 706; violation of the Due Process

15 Clause of the Fifth Amendment to the United States Constitution; and for a writ of mandamus.

16

LEGAL STANDARDS

17

The standards governing defendants’ motion to dismiss are well-established. Rule 8(a)(2)

18 of the Federal Rules of Civil Procedure requires that a complaint must contain “a short and plain

19 statement of the claim showing that the pleader is entitled to relief.” To meet that rule and survive

20 a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state a claim to relief

21 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This does not

22 impose a probability requirement at the pleading stage. “[I]t simply calls for enough fact to raise a

23 reasonable expectation that discovery will reveal evidence of” the conduct challenged by plaintiff.

24 Id. at 556. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

26 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In addition, the

27 allegations in the complaint must be sufficiently clear and concrete to give the defendant an “idea

28 [of] where to begin” in preparing a response to the complaint. Twombly, 550 U.S. at 565 n.10. 10

1 Determining whether a complaint states a plausible claim for relief is a “context-specific task that

2 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

3 U.S. at 679.

4

The Court will assume that plaintiffs’ factual allegations are true, and will draw all

5 reasonable inferences in their favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.

6 1987). But it will not “accept as true allegations that are merely conclusory, unwarranted

7 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049,

8 1055 (9th Cir. 2008) (quotation omitted). If the complaint is dismissed, an opportunity to amend

9 will be provided unless the Court determines that no cure is possible by new allegations of fact.

10 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

11

DISCUSSION

United States District Court Northern District of California

12 I. 13

JUSTICIABILITY AND THE SCOPE OF PLAINTIFFS’ CLAIMS The first question raised in the government’s motion is whether plaintiffs’ claims are

14 justiciable, or whether they should be dismissed, as the government contends, under the doctrine

15 of the nonreviewability of consular decisions. This is one of the government’s main contentions

16 for dismissal. See, e.g., Dkt. No. 42 at 1 (“[C]onsular nonreviewability prevents a court [from]

17 overturning consular officers’ decisions or interfering with their decision-making.”); id. at 3

18 (“Plaintiffs’ claims are barred by 5 U.S.C. § 701(a)(1) because the INA precludes judicial review

19 of consular visa decisions.”); id. at 4 (“Consular officers’ decisions to grant or deny waivers and to

20 revoke visas are committed to their discretion by law and therefore judicially unreviewable.”); id.

21 at 6 (“Although plaintiffs’ challenge is styled as a challenge to the waiver process, they seek APA

22 review of consular officers’ individual decisions to deny visas.”).

23

It is certainly true that certain immigration or exclusion decisions are not reviewable in

24 court. See Hawaii, 138 S.Ct. at 2407; Rivas v. Napolitano, 714 F.3d 1108, 1110-11 (9th Cir.

25 2013). Because the complaint is at points rather loosely worded, it might seem on occasion that

26 plaintiffs are straying into unreviewable areas. But plaintiffs substantially clarified and narrowed

27 the scope of their claims in their opposition brief and during oral argument. In response to the

28 government’s contention, plaintiffs expressly state that they “do not challenge individual consular 11

1 officer decisions on the merits and do not challenge the outcome of any particular consular

2 officer’s decision in a given case.” Dkt. No. 57 at 1; see also id. at 2 (“this is not a case seeking

3 review of an individual consular officer’s discretionary decision”); id. at 5 (“individual visa

4 denials” are “not at issue here”). That is entirely consistent with a fair reading of the complaint,

5 which leaves no doubt that plaintiffs are challenging systemic practices with respect to the waiver

6 program, and not individualized determinations for any specific person. The gravamen of the

7 complaint is that the government has flouted its own guidelines and statements about case-by-case

8 determinations of waiver applications in favor of a policy of blanket denials. See Dkt. No. 68 at

9 17:12-15 (plaintiffs’ statement at the motion hearing that their “APA claim fundamentally rests on

10 that idea that when an agency holds itself forth as providing a process, it must actually provide

11 that process; and it can’t go against its own guidelines.”). Those issues do not require review of

United States District Court Northern District of California

12 an individual consular officer’s decision. Consequently, dismissal for lack of a justiciable

13 controversy is denied.

14

Another important clarification by plaintiffs concerns the scope of the APA claim. The

15 complaint suggests in places that plaintiffs might be contemplating a violation of the Immigration

16 and Nationality Act as the basis of their APA claim. See, e.g., Dkt. No. 34 ¶ 319 (“Defendants

17 have acted arbitrarily and capriciously and in contravention of . . . the INA . . . , and they have thus

18 violated the APA.”); id. at 68 (Prayer for Relief, ¶ 4) (seeking declaration that “defendants’ refusal

19 to give full and fair consideration for waivers to all visa applicants from the banned countries

20 violates . . . the INA”). At the motion hearing, plaintiffs expressly disclaimed an APA claim

21 premised on any “particular provision of the INA” or any claim that defendants violated “any

22 specific section of the INA.” Dkt. No. 68 at 17:16-18:3. The complaint will be construed in light

23 of this clarification. Plaintiffs also acknowledged, as the Supreme Court’s opinion in Hawaii

24 essentially compels, that they “do not challenge the Proclamation itself.” Dkt. No. 57 at 1.

25

Nor do plaintiffs seek to enforce the terms of the Proclamation. Rather, they are pursuing

26 an APA claim based on the allegation that the State Department is not following its own waiver

27 guidance. Consequently, the Court need not address the issue of whether a private citizen can sue

28 12

1 to enforce a Presidential Proclamation, which is by no means a self-evident proposition. See East

2 Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1250 (9th Cir. 2018).

3 II. APA CLAIM

4

The Administrative Procedure Act creates a “basic presumption of judicial review [for] one

5 suffering legal wrong because of agency action.” Weyerhaeuser Co. v. U.S. Fish and Wildlife

6 Serv., 139 S.Ct. 361, 370 (2018) (alterations in original; quotation omitted). Our circuit has

7 construed the APA to provide for “broad judicial review of agency action: ‘A person suffering

8 legal wrong because of agency action, or adversely affected or aggrieved by agency action within

9 the meaning of a relevant statute, is entitled to judicial review thereof.’” Regents of the Univ. of

10 Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018) (quoting 5 U.S.C. § 702).

11 The APA also states that “[a]gency action made reviewable by statute and final agency action for

United States District Court Northern District of California

12 which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704.

13 Section 706 authorizes the reviewing court to “compel agency action unlawfully withheld” as well

14 as to set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise

15 not in accordance with law.” 5 U.S.C. §§ 706(1) and (2)(A).

16

Plaintiffs’ APA claim has solid legal support in the “well-established” proposition that

17 “agencies may be required to abide by certain internal policies.” Alcaraz v. Immigration and

18 Naturalization Serv., 384 F.3d 1150, 1162 (9th Cir. 2004). This proposition was first recognized

19 in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), which involved an

20 immigration dispute with overtones similar to this one. The plaintiff in Accardi was an Italian

21 immigrant who challenged the validity of a decision by the Board of Immigration Appeals

22 (“BIA”) that denied his deportation appeal. Id. at 262-63. The Supreme Court reversed and

23 ordered a new appeal hearing because the BIA had not acted in conformance with its governing

24 regulations. Those regulations required the BIA to exercise its own judgment and discretion when

25 considering appeals, but the record indicated that the BIA had summarily denied Accardi’s appeal

26 because he was on a list sent from the Attorney General of “unsavory characters” slated for

27 deportation. Id. at 264-67. The Supreme Court concluded that the BIA’s decision was invalid

28 13

1 because it had not, in fact, exercised its discretion as required by the regulations, but had instead

2 allowed the Attorney General to dictate the result. Id.

3

The holding that administrative agencies are bound to follow their rules and guidelines has

4 since been called the Accardi doctrine. The Supreme Court reinvigorated the principle in Morton

5 v. Ruiz, 415 U.S. 199, 235 (1974): “Where the rights of individuals are affected, it is incumbent

6 upon agencies to follow their own procedures. This is so even where the internal procedures are

7 possibly more rigorous than otherwise would be required.” The doctrine applies to an agency’s

8 procedures however they might be denominated. See, e.g., Church of Scientology of Cal. v.

9 United States, 920 F.2d 1481, 1487 (9th Cir. 1990) (“Pursuant to the Accardi doctrine, an

10 administrative agency is required to adhere to its own internal operating procedures.”); see also

11 Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (noting that the INS can be bound

United States District Court Northern District of California

12 by its “operations instructions”). What is critical under the doctrine is that an agency can be sued

13 for failing to abide by the rules and procedures it formulates to perform its duties.

14

The government does not seriously contest this point, see Dkt. No. 58 at 6 n.4, and for

15 good reason. The State Department is without doubt an agency for purposes of the APA. Allen v.

16 Milas, 896 F.3d 1094, 1102-03 (9th Cir. 2018). The State Department created rules and

17 procedures for the waiver program, as detailed in plaintiffs’ exhibits, and recognized the materials

18 it promulgated as such. See, e.g., Dkt. No. 68 at 9:5-7 (State Department’s online postings were

19 its “outward facing guidance” for waivers). The heart of the APA claim is that the State

20 Department has acted arbitrarily and unlawfully by disregarding its own procedures and rules in

21 administering the waiver program. That is a legally sound claim, and other courts have also

22 allowed APA claims in similar circumstances. See Torres v. U.S. Dep’t of Homeland Sec., No.

23 17cv1840 JM (NLS), 2017 WL 4340385, at *5 (S.D. Cal. Sept. 29, 2017) (APA claim based on

24 DHS failure to follow Deferred Action for Childhood Arrivals program rules and standard

25 operating procedures) (citing Accardi, 347 U.S. at 268, and Alcaraz, 384 F.3d at 1162); Damus v.

26 Nielsen, 313 F. Supp. 3d 317, 335-38 (D.D.C. 2018) (APA claim based on DHS failure to comply

27 with an ICE Parole Directive).

28 14

1

The next question is whether plaintiffs have alleged enough in the way of facts to state a

2 plausible APA claim under Accardi. They have. To start, the parties agree that individuals

3 subject to the Proclamation who seek a waiver in order to travel to the United States are required

4 to “disclose during the visa interview any information that might demonstrate that he or she is

5 eligible for a waiver.” Dkt. No. 34-4 (Ex. C) at ECF p. 6. The government repeatedly affirmed

6 this point and emphasized the importance of the visa interview to the waiver program process at

7 the motion hearing. See, e.g., Dkt. No. 68 at 9:11-14 (“There is always a visa interview. So issues

8 on the undue harm and the national interest would be raised at the interview.”); id. at 23:4-8

9 (“[T]he guidance was clear on that from the beginning. It says you ask at the interview, and you

10 explain the circumstances at the interview that would entitle you -- it will help you meet the

11 burden and the national interest test.”).

United States District Court Northern District of California

12

Plaintiffs allege many instances where applicants whose visa interviews took place before

13 the Proclamation were denied a visa and a waiver in summary fashion after the Proclamation was

14 signed, and with no further interview or opportunity to submit documents and demonstrate

15 eligibility for a waiver. See, e.g., Dkt. No. 34 ¶¶ 133-36, 184-87. Plaintiffs have identified other

16 occasions on which consular officers refused to consider or even accept documents offered to

17 them, on one occasion at the visa interview. Id. ¶ 101; see also id. ¶¶ 257-61. These facts

18 adequately allege that the State Department has not followed its own guidance with respect to its

19 requirement that visa applicants must disclose at their visa interviews any information that might

20 demonstrate that the applicant is eligible for a waiver.

21

Plaintiffs allege other failures by the State Department to adhere to its own rules. For

22 example, the waiver guidance states that individual consular officers will exercise discretion to

23 grant waivers on a case-by-case basis when they find the requirements for a waiver to be satisfied.

24 See, e.g., Dkt. No. 34-4 (Ex. C) at ECF p. 6 (“consular officers may issue a visa based on a listed

25 waiver category to nationals of countries identified in the PP on a case-by-case basis, when they

26 determine . . . .”). Contrary to this avowed process, plaintiffs allege facts plausibly demonstrating

27 that a de facto policy of blanket denials has usurped individualized waiver decisions. These facts

28 include the declaration of a former consular officer who states that “we were not allowed to 15

1 exercise that discretion” and that “there really is no waiver,” Dkt. No. 34-3 (Ex. B), and evidence

2 showing that the sample waiver letter had the “denied” box pre-checked and contained no option

3 for the grant of a waiver at all. Dkt. No. 34-10 (Ex. I). And as discussed, the complaint also

4 offers the testimonials of applicants who were summarily denied waivers and visas, in some cases

5 with the same form letter and in others without ever having had a post-Proclamation visa interview

6 or any other opportunity to make his or her case for a waiver.

7

Consequently, the Court concludes that plaintiffs have stated an APA claim under the

8 Accardi doctrine. The government has not persuasively argued otherwise. It puts substantial

9 emphasis on a number of factual matters, see, e.g., Dkt. No. 58 at 1, 9 (asserting facts about waiver

10 reviews and approval figures), but those issues are of course properly addressed in a summary

11 judgment motion (if truly undisputed) or at trial, and not in a motion to dismiss. The government

United States District Court Northern District of California

12 also suggests that the Supreme Court already rejected in Hawaii any claim that the waiver process

13 is a sham, but that reading goes too far. The footnote in the majority opinion about the evidentiary

14 record, 138 S.Ct. at 2423 n.7, hardly constitutes a clear holding that bars the door to plaintiffs’

15 claims here. To the contrary, the better conclusion is that the government’s conduct should be

16 tested on a full record, as plaintiffs propose to do in this case.

17 III. FIFTH AMENDMENT CLAIM

18

Plaintiffs also allege claims under the Fifth Amendment to the United States Constitution

19 for substantive and procedural due process deprivations, and an equal protection violation. Dkt.

20 No. 34 ¶¶ 322-34. The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,

21 liberty, or property, without due process of law.”

22

For the due process claim, the threshold question is whether a plaintiff was deprived of any

23 of these interests, because “no process is due if one is not deprived of ‘life, liberty, or property.’”

24 Kerry v. Din, 135 S.Ct. 2128, 2132 (2015) (Scalia, J., plurality opinion) (quotation omitted,

25 emphasis in original). Plaintiffs do not directly allege such a deprivation, so the question is

26 whether they were deprived of “certain implied ‘fundamental rights’” that are understood to be

27 included under the “liberty” prong. Id. at 2133. This is also lacking. Plaintiffs have not alleged

28 any constitutionally protected fundamental rights for either the Family Member Class or the Visa 16

1 Applicant Class. They refer to a “right” to the “integrity of the family unit,” but even assuming

2 such a right can be found in the Fifth Amendment, which is not at all clear, plaintiffs concede that

3 it would “not amount to a right of entry for foreign nationals, nor to an unfettered right to reside in

4 the United States with family members who are foreign nationals.” Dkt. No. 57 at 13. Indeed, the

5 Supreme Court has held in a plurality opinion that “[e]ven if we might ‘imply’ a liberty interest in

6 marriage generally speaking, that must give way when there is a tradition denying the specific

7 application of that general interest . . . . Although immigration was effectively unregulated prior

8 to 1875, as soon as Congress began legislating in this area it enacted a complicated web of

9 regulations that erected serious impediments to a person’s ability to bring a spouse into the United

10 States.” Din, 135 S.Ct. at 2135. Plaintiffs’ inability to allege a deprivation of an interest protected

11 by the Due Process Clause means their claim must be dismissed in both its procedural and

United States District Court Northern District of California

12 substantive iterations. The dismissal is without prejudice and plaintiffs may amend, if they so

13 choose.

14

Plaintiffs’ equal protection claim under the Fifth Amendment is also dismissed. Although

15 the Fifth Amendment does not contain an express equal protection clause, its Due Process Clause

16 has been interpreted to include an equal protection component. See Bolling v. Sharpe, 347 U.S.

17 497, 499-500 (1954); Buckley v. Valeo, 424 U.S. 1, 93 (1976). Even so, there are problems with

18 plaintiffs’ equal protection claim. Their claim is that the “waiver guidance that has issued has

19 been arbitrary and capricious and designed to result in almost-uniform denials. Taken as true, and

20 given the background against which the waiver scheme arose, this supports an inference that the

21 agency has a policy of denying waivers on discriminatory grounds, including nationality or

22 religion.” Dkt. No. 57 at 14. This inference is not nearly as obvious as plaintiffs suggest, and

23 demands assumptions unsupported by non-conclusory allegations of fact. That will not do under

24 Twombly and Iqbal. See Iqbal, 556 U.S. at 768. In addition, the logic that “almost-uniform

25 denials” of waivers is tantamount to denial of “waivers on discriminatory grounds” holds together

26 only if it is assumed that the Proclamation unconstitutionally excludes Muslims or illegally

27 discriminates on the basis of nationality, a proposition that the Supreme Court turned aside in

28 Hawaii. 138 S.Ct. at 2413-23. 17

1

The Court also notes, without firmly deciding the question at this time, that the equal

2 protection claim would likely be subject to rational basis review. See Ledezma-Cosino v. Sessions,

3 857 F.3d 1042, 1048 (9th Cir. 2017). The Supreme Court has already concluded in reviewing the

4 Proclamation that “the Government has set forth a sufficient national security justification to

5 survive rational basis review.” Hawaii, 138 S.Ct. at 2423. This is another sizeable roadblock to

6 the equal protection claim as currently alleged. But plaintiffs will have an opportunity to amend

7 this claim too.

8 IV. MANDAMUS CLAIM

9

Plaintiffs’ final claim, for a writ of mandamus, is also dismissed without prejudice. The

10 writ of mandamus is “intended to provide a remedy for a plaintiff only if he [or she] has exhausted

11 all other avenues of relief and only if the defendant owes him [or her] a clear nondiscretionary

United States District Court Northern District of California

12 duty.” Heckler v. Ringer, 466 U.S. 602, 616-17 (1984).

13

Plaintiffs themselves have acknowledged the duplicative nature of their mandamus claim

14 and that it may not be necessary. See, e.g., Dkt. No. 57 at 15 (“Should this Court find that

15 plaintiffs are not entitled to relief under the APA or the Due Process Clause, mandamus relief

16 would still be available.”); Dkt. No. 68 at 21:3-5 (“I would say the core of our claim is the APA

17 and the constitutional claims.”).

18

Because the APA claim will go forward, the Court dismisses plaintiffs’ mandamus claim

19 on the basis of plaintiffs’ representations that the mandamus claim is redundant. The dismissal is

20 without prejudice to renewing at a later time, should that become appropriate. Plaintiffs’

21 mandamus claim may also become relevant to a discussion of the proper relief in this case.

22

On that note, the prayer for relief in the complaint asks the Court to order the retraction of

23 all visa denials and to order defendants to “fulfill their duties under the Proclamation.” Dkt.

24 No. 34 at 67. The former may infringe impermissibly on individual consular officers’ decision-

25 making, and the latter, as noted previously in this order, sounds like an impermissible attempt to

26 enforce the Proclamation. These issues are not squarely before the Court at this time, but plaintiffs

27 may want to consider them if they amend the complaint.

28 18

1

CONCLUSION

2

Defendants’ motion to dismiss is denied for plaintiffs’ APA claim. The Fifth Amendment

3 claim is dismissed with leave to file an amended complaint by February 25, 2019, if plaintiffs so

4 choose. The mandamus claim is dismissed without prejudice to potential remedies if appropriate

5 at a later stage.

6

IT IS SO ORDERED.

7 Dated: February 4, 2019

8

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10

JAMES DONATO United States District Judge

11

United States District Court Northern District of California

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 Case 3:18-cv-01587-JD Document 152 Filed 06/05/20 Page 1 of 10

United States District Court Northern District of California

1

2

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4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

FARANGIS EMAMI, et al.,

8

Plaintiffs,

9

v.

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KIRSTJEN NIELSEN, et al.,

11

Defendants.

Case No. 18-cv-01587-JD
ORDER RE MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT Re: Dkt. No. 98

12 PARS EQUALITY CENTER, et al.,
13 Plaintiffs,
14 v.
15 MIKE POMPEO, et al.,
16 Defendants.
17

Case No. 18-cv-07818-JD Re: Dkt. No. 120

18

These related cases concern Presidential Proclamation 9645, “Enhancing Vetting

19 Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or

20 Other Public-Safety Threats.” 82 Fed. Reg. 45161 (2017) (the “Proclamation”). The

21 Proclamation sharply curtailed, and in some cases completely suspended, entry into the United

22 States by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id.

23 at 45162, 45165-67.1 Plaintiffs focus on nationals of Iran, Libya, Somalia, Syria and Yemen, and

24 challenge the government’s handling of a waiver program that would allow exceptions for entry

25 into the United States in certain circumstances. The gravamen of the complaints is that the

26

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1 The restrictions on nationals of Chad have been lifted. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (Apr. 10, 2018).

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1 government created guidance for waivers which it has systematically ignored to deny the vast

2 majority of waiver applications.

3

The Court granted in part and denied in part a motion to dismiss in the Emami case with

4 leave to amend, finding that plaintiffs had plausibly stated a claim under the Accardi doctrine.

5 Dkt. No. 74 (Emami) at 16. The heart of this claim was that “the State Department has acted

6 arbitrarily and unlawfully by disregarding its own procedures and rules in administering the

7 waiver program” established by the Proclamation. Id. at 14. The Emami plaintiffs filed a second

8 amended complaint. Dkt. No. 75 (Emami). As the Emami motion to dismiss proceedings were

9 under way, the Pars case was transferred here from the Western District of Washington. Dkt. No.

10 80 (Pars). The operative complaint in that case remains the initial complaint. Dkt. No. 1 (Pars).

11 Defendants have filed motions to dismiss, or to obtain summary judgment for, the second

12 amended complaint in Emami and the complaint in Pars. Dkt. No. 98 (Emami); Dkt. No. 120

13 (Pars). This order resolves those motions.

14

DISCUSSION

15

The parties’ familiarity with the record is assumed. The prior dismissal order provides a

16 detailed statement of the case and plaintiffs’ claims, and the governing standards for a motion to

17 dismiss. Dkt. No. 74 (Emami).

18 I. 19 20

MOTIONS TO DISMISS A. Pars Complaint The Court has not been called upon to review the plausibility of the Pars complaint until

21 now. The analysis of the Emami complaint in the dismissal order applies in full measure here, and

22 streamlines the discussion.

23

1. Justiciability

24

The Court squarely answered the government’s justiciability objection in Emami.

25 Dismissal for lack of a justiciable controversy was denied because the Emami plaintiffs are not

26 suing over “individual consular officer decisions on the merits . . . [or] the outcome of any

27 particular consular officer’s decision in a given case.” Dkt. No. 74 (Emami) at 11-12. They are

28 “challenging systemic practices with respect to the waiver program, and not individualized 2

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1 determinations for any specific person.” Id. at 12. So too in the Pars complaint. See Dkt. No. 1

2 (Pars); Dkt. No. 125 (Pars) at 6 (“Plaintiffs do not seek review of any individual, discretionary

3 decision by a consular officer,” rather, “they seek review of the policies and practices that

4 Defendants have adopted to implement the Proclamation”). This is a justiciable controversy

5 properly before the Court.

6

2. APA Claim

7

Defendants’ request to dismiss the APA claim in Pars is denied. Defendants say that the

8 APA does not apply at all. Dkt. No. 120 (Pars) at 9-10. But as the Court has already determined,

9 the Administrative Procedure Act “creates a ‘basic presumption of judicial review for one

10 suffering legal wrong because of agency action,’” and our circuit has construed the APA “to

11 provide for ‘broad judicial review of agency action.’” Dkt. No. 74 (Emami) at 13 (quoting

12 Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 139 S.Ct. 361, 370 (2018), and Regents of the

13 Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018)). Agency action

14 is not immunized from review just because it might be linked to a Presidential Proclamation. See

15 East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 770 (9th Cir. 2018) (“insofar as DOJ and

16 DHS have incorporated the Proclamation by reference into the Rule, we may consider the validity

17 of the agency’s proposed action, including its ‘rule . . . or the equivalent’”); Chamber of

18 Commerce of the U.S. v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996) (“agency regulations that

19 implement an executive order are reviewable under the APA”).

20

The Pars complaint is based on a final agency action properly subject to judicial review.

21 Defendants say that plaintiffs have “fail[ed] . . . to direct their complaint against any ‘final agency

22 action,’” Dkt. No. 128 (Pars) at 2-3, but that is not a fair characterization of plaintiffs’ complaint.

23 The Pars plaintiffs have identified, and are challenging, a final agency action consisting of “the

24 ‘worldwide guidance’ referenced in the State Department’s February 22 letter and the State

25 Department guidance, cables, sample Q’s & A’s and instructions referenced in the Richardson

26 declaration,” along with other actions taken by defendants in reliance of Section 3(c) of the

27 Proclamation. Dkt. No. 1 (Pars) ¶¶ 279-80. Plaintiffs further allege that these actions resulted in

28 a waiver process in which, among other things, “visa applicants have been denied waivers without 3

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1 ever having received notice of a waiver process, and/or have been denied waivers without ever

2 having had a consular interview or other opportunity to provide evidence of their eligibility for a

3 waiver, in contravention of 22 C.F.R. §§ 41.121 and 42.81, which state that when refusing the

4 issuance of a visa, a consular officer must inform the visa applicant ‘whether there is, in law or

5 regulations, a mechanism (such as a waiver) to overcome the refusal.’” Id. ¶ 281 (quoting 22

6 C.F.R. § 41.121(b)(1)). Plaintiffs also allege that the government has implemented a waiver

7 process in which “consular officers do not have discretion over whether and when to grant a

8 waiver, and thus no discretion over whether they may grant a visa to an individual subject to the

9 Proclamation, in contravention of the Proclamation itself as well as 8 U.S.C. § 1104(a), which

10 states that consular officers have complete discretion over the issuance of visas and that such

11 discretion may not be circumscribed by the Secretary of State.” Id. ¶ 284.

12

Defendants suggest that “the Proclamation [is] the only relevant source of law in this

13 case,” Dkt. No. 128 (Pars) at 2-3, but plaintiffs have identified a number of legal tests with which

14 to assay the government’s conduct, and defendants have not demonstrated that plaintiffs have

15 missed the mark. In effect, plaintiffs are following Trump v. Hawaii, 138 S.Ct. 2392, 2408

16 (2018), where the Supreme Court measured the Proclamation against the provisions of the

17 Immigration and Nationality Act, even after finding that the President had lawfully exercised his

18 “broad discretion to suspend the entry of aliens into the United States” under § 1182(f) of that

19 statute. See Hawaii, 138 S.Ct. at 2411 (“We may assume that § 1182(f) does not allow the

20 President to expressly override particular provisions of the INA. But plaintiffs have not identified

21 any conflict between the statute and the Proclamation”). In this case, plaintiffs have plausibly

22 alleged conflicts between the government’s actions, 22 C.F.R. §§ 41.121 and 42.81, the

23 Proclamation, and 8 U.S.C. § 1104(a). Defendants effectively concede the point by sidestepping

24 the conflict allegations with factual arguments, such as “each Plaintiff received exactly what the

25 regulations require,” Dkt. No. 120 (Pars) at 11, and “Plaintiffs are wrong that consular officers are

26 denied discretion to grant waivers,” Dkt. No. 128 (Pars) at 7.

27

The Court also declines to dismiss at this juncture plaintiffs’ allegation that defendants’

28 implementation of the waiver provision violated the APA’s notice-and-comment requirements. 4

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1 Dkt. No. 125 (Pars) at 11; Dkt. No. 1 (Pars) ¶ 287 (“Defendants’ actions, as set forth above, affect

2 the Plaintiffs’ substantive rights and were made without observance of procedure required by law

3 in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D).”). “[W]hen an agency

4 promulgates regulations other than ‘interpretative rules, general statements of policy, or rules of

5 agency organization, procedure, or practice,’ 5 U.S.C. § 553(b)(A), the statute provides the public

6 with pre-promulgation notice and comment. 5 U.S.C. § 553(b), (c).” Alcaraz v. Block, 746 F.2d

7 593, 610-11 (9th Cir. 1984) (internal citation omitted). The government cites Innovation Law Lab

8 v. McAleenan, 924 F.3d 503, 509 (9th Cir. 2019), for the proposition that the State Department’s

9 waiver guidance was not required to go through notice-and-comment rulemaking because it was

10 merely “a ‘general statement of policy’ to guide the exercise of discretion by its officials.” Dkt.

11 No. 128 (Pars) at 6. But that is not consistent with plaintiffs’ allegations here. Plaintiffs have

12 plausibly alleged for 12(b)(6) purposes that defendants have issued guidance which resulted in a

13 waiver process in which consular officers had no discretion to exercise at all. Dkt. No. 1 (Pars)

14 ¶¶ 279, 284. The government may, however, raise the argument again if warranted at a later stage

15 of the case, after development of the record.

16

3. Accardi Claim

17

As a second claim, the Pars plaintiffs essentially re-allege their first claim in the

18 alternative, this time under the “Accardi Doctrine & Administrative Procedure Act.” Dkt. No. 1

19 (Pars) ¶¶ 289-94. It will go forward for the reasons stated in the Emami order with respect to the

20 Accardi doctrine. The government says that “Accardi has no relevance here, where the

21 Proclamation and its related guidance are neither regulations nor internal documents that create

22 any procedural rights.” Dkt. No. 120 (Pars) at 10. This is in effect an improper request for

23 reconsideration of the Emami order, see Civil L.R. 7-9, and in any event, the Accardi doctrine is

24 not so circumscribed, as the government’s own case citations demonstrate. In Montilla v.

25 Immigration and Naturalization Service, 926 F.2d 162, 167 (2d Cir. 1991), the court held that

26 “[t]he Accardi doctrine is premised on fundamental notions of fair play underlying the concept of

27 due process. . . . Its ambit is not limited to rules attaining the status of formal regulations. As the

28 Supreme Court noted ‘where the rights of individuals are affected, it is incumbent upon agencies 5

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1 to follow their own procedures.’” The Montilla court further noted that “[t]he doctrine has

2 continued vitality, particularly where a petitioner’s rights are ‘affected.’” Id.

3

Two other aspects of the Montilla case are relevant here. It does not stand for the

4 proposition, as the government suggests, that “even assuming that an Accardi claim could survive

5 a motion to dismiss, the only relief available would be limited to a ‘remand’ with instructions for

6 the agency to comply.” Dkt. No. 120 (Pars) at 11. In Montilla, a remand to the Board of

7 Immigration Appeals made sense because petitioner’s sole contention on appeal was that “the

8 immigration judge did not follow the applicable regulation protecting an alien’s right to counsel, 8

9 C.F.R. § 242.16(a) (1990), and that this error constituted a denial of due process” in his

10 deportation proceeding. 926 F.2d at 166, 170. The Montilla court never said that a remand was

11 the only option for an Accardi violation; to the contrary, it emphasized that the doctrine was “still

12 alive and well” and that it was a “judicially-evolved rule ensuring fairness.” Id. at 168. This

13 underscores the flexibility inherent in the doctrine to fashion a remedy that fits the wrong.

14

Montilla is also notable for applying Accardi as a freestanding claim, untethered to the

15 APA or other statute. This is entirely consistent with the decision in Accardi itself, which was not

16 based on the APA. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The

17 Court has reached the same conclusion as Montilla that an Accardi claim can stand on its own and

18 “is at heart a claim of procedural fairness that owes as much to the Due Process Clause as to the

19 Administrative Procedures Act.” Dkt. No. 122 (Emami) at 2 (citing Jefferson v. Harris, 285 F.

20 Supp. 3d 173, 185 (D.D.C. 2018)). Plaintiffs’ decision to tie their Accardi claim to the APA is

21 analytically questionable, and they may find that they have imposed on themselves unnecessary

22 burdens by doing that. The request to dismiss the Pars plaintiffs’ second claim under the Accardi

23 doctrine is denied.

24

4. Fifth Amendment Due Process Claim

25

Plaintiffs’ third claim directly under the Due Process Clause of the Fifth Amendment for a

26 violation of procedural due process cannot go forward. In the Emami order, the Court dismissed

27 this claim due to plaintiffs’ “inability to allege a deprivation of an interest protected by the Due

28 Process Clause.” Dkt. No. 74 (Emami) at 17. This is a separate and different inquiry from the one 6

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1 under Accardi, and is subject to different standards. The Pars plaintiffs ask the Court to

2 “reconsider its view,” Dkt. No. 125 (Pars) at 12, on the basis of a circuit decision from 2008. See

3 id. at 12-13 (citing Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008)). This is also an

4 improper request for reconsideration, and it is unpersuasive in that Bustamante pre-dates Kerry v.

5 Din, 135 S.Ct. 2128 (2015), the main basis for the Court’s prior order on this issue, by nearly a

6 decade. The third claim is dismissed.

7

B. Emami Second Amended Complaint

8

The second amended complaint in Emami, and the attendant motion to dismiss arguments,

9 are Groundhog Day or déjà vu all over again, depending on one’s taste in clichés. The allegations

10 and arguments on both sides are virtually unchanged.

11

The Emami SAC continues to suffer from vague and conflicting allegations. To take one

12 example, the SAC says that defendants have failed to issue any guidance at all. See, e.g., Dkt. No.

13 75 (Emami) ¶ 313 (“Defendants have either failed to promulgate guidance or have promulgated

14 guidance that is arbitrary and capricious on its face”). This is an inherently odd assertion,

15 especially in light of plaintiffs’ own complaint exhibits in which the State Department recognized

16 its online postings as its “outward facing guidance” for waivers. Dkt. No. 74 (Emami) at 14.

17 Plaintiffs try to walk this back in their opposition to the motion to dismiss, where they say that

18 their claim “is not that no guidance has been issued at all, but rather that the issued guidance has

19 not been followed; that the guidance itself is arbitrary and capricious; and that it violates

20 Plaintiffs’ constitutional rights.” Dkt. No. 104 (Emami) at 1-2. In light of this admission, the

21 portions and claims in the SAC alleging that no guidance was issued are dismissed. The Court

22 will not catalog here the other vague and inconsistent allegations in the SAC, but if they become

23 an issue in the case, they are likely to meet a similar disposition.

24

The government’s request to dismiss the first claim under the APA is denied. Plaintiffs

25 allege, among other things, that the government has “failed to follow their own policies and

26 procedures,” and have “put in place a waiver process in which applicants are denied waivers

27 without ever receiving notice or an opportunity to apply [and] applicants are denied waivers

28 without having had a consular interview since the time the Proclamation went into effect.” Dkt. 7

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1 No. 75 (Emami) ¶ 314. Plaintiffs allege that these actions should be invalidated under Accardi,

2 347 U.S. 260. Id. ¶ 317. The Court has already found this to be a viable claim, Dkt. No. 74

3 (Emami), and that conclusion holds.

4

The second and third claims for relief under the Fifth Amendment are again dismissed

5 based on an “inability to allege a deprivation of an interest protected by the Due Process Clause.”

6 Dkt. No. 74 (Emami) at 17. The Court has also determined that the equal protection claim “holds

7 together only if it is assumed that the Proclamation unconstitutionally excludes Muslims or

8 illegally discriminates on the basis of nationality, a proposition that the Supreme Court turned

9 aside in Hawaii.” Id. (citing 138 S.Ct. at 2413-23). The Court further noted that the equal

10 protection claim was likely to be subject to rational basis review, and that the Supreme Court “has

11 already concluded in reviewing the Proclamation that ‘the Government has set forth a sufficient

12 national security justification to survive rational basis review.’ Hawaii, 138 S.Ct. at 2423.” Id. at

13 18. The Emami plaintiffs’ Fifth Amendment claims are virtually unchanged from their previous

14 versions, and the Court sees no reason to reach a different conclusion on either claim.

15

The mandamus claim is dismissed. The claim focuses on defendants’ alleged “fail[ure] to

16 develop meaningful guidance,” Dkt. No. 75 (Emami) ¶ 336, an allegation that plaintiffs have now

17 retracted. Plaintiffs have added a claim for unreasonable delay on decisions on individual visa and

18 waiver applications. Id. ¶ 337. But “[m]andamus is an extraordinary remedy and is available to

19 compel a federal official to perform a duty only if: (1) the individual’s claim is clear and certain;

20 (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from

21 doubt, and (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th

22 Cir. 2003); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“The common-law writ of

23 mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if

24 he has exhausted all other avenues of relief and only if the defendant owes him a clear

25 nondiscretionary duty.”). Plaintiffs do not identify any source of law that mandates that decisions

26 be issued within a certain period of time, and the decisions on individual waiver applications are

27 inherently discretionary. See 82 Fed. Reg. at 45168 (“a consular officer, or the Commissioner,

28 8

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1 United States Customs and Border Protection (CBP), or the Commissioners’ designee, as

2 appropriate, may, in their discretion, grant waivers on a case-by-case basis”).

3 II. SUMMARY JUDGMENT

4

The government’s motions for summary judgment are denied. The government relies on

5 an “administrative record” to “show[] that defendants have applied the waiver provision in an

6 orderly way.” Dkt. No. 98 (Emami) at 11. But this does not account for the Accardi claims, and

7 “there is no ‘administrative record’ when the essence of the claim is that the government has failed

8 to act in accordance with its own rules and regulations.” Dkt. No. 122 (Emami) at 2. In addition,

9 the multiple discovery dispute letters that have been filed in these cases underscore the degree to

10 which the parties disagree about the material facts and what the “administrative record” might

11 properly contain. These factual disputes preclude summary judgment at this time. See Federal

12 Trade Commission v. D-Link Systems, Inc., No. 17-cv-00039-JD, 2018 WL 6040192 (N.D. Cal.

13 Nov. 5, 2018). It is also doubtful that plaintiffs have had a full and fair opportunity to take

14 discovery from defendants and test the evidence the government has presented as the

15 administrative record.

16

CONCLUSION

17

In the Pars case, defendants’ motion to dismiss is denied as to plaintiffs’ APA claim and

18 Accardi claim, but granted as to the Fifth Amendment claim. The summary judgment motion is

19 denied without prejudice.

20

In the Emami case, defendants’ motion to dismiss is denied for plaintiffs’ APA claim, but

21 granted for plaintiffs’ Fifth Amendment Due Process and Equal Protection claims, and the

22 mandamus claim. Defendants’ summary judgment motion is denied without prejudice.

23

On this record, the Court declines to provide yet another round of pleading amendments to

24 either set of plaintiffs. The Emami plaintiffs have had multiple opportunities to amend, in which

25 case the Court’s discretion to deny further amendment is especially broad. See Chodos v. West

26 //

27 //

28 // 9

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1 Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). So too for the Pars plaintiffs, given the

2 procedural context of these closely related cases.

3

IT IS SO ORDERED.

4 Dated: June 5, 2020

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JAMES DONATO United States District Judge

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