Emami v. Nielsen et al

Filing 208

ORDER RE SUMMARY JUDGMENT. Status Conference set for 8/16/2022 at 2:00 PM by Videoconference. Signed by Judge James Donato on 8/1/2022. (jdlc2, COURT STAFF) (Filed on 8/1/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FARANGIS EMAMI, et al.,

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Plaintiffs,

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ORDER RE SUMMARY JUDGMENT

v.

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ALEJANDRO MAYORKAS, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No. 18-cv-01587-JD

PARS EQUALITY CENTER, et al.,

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Case No. 18-cv-07818-JD

Plaintiffs,

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v.

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ANTONY BLINKEN, et al.,

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Defendants.

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In these related cases, plaintiffs ask for summary judgment on their claims under the

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Administrative Procedure Act. Dkt. No. 197.1 They do not seek summary judgment for their

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APA claims based on the Accardi doctrine, see id. at 11 n.13, and so those claims are not

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addressed in this order. They request summary judgment only on their APA claims brought

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pursuant to 5 U.S.C. §§ 706(2)(A) and (D). See id. at 16-23. The Court finds plaintiffs’ motion to

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be suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b).
The government makes only one real argument in opposition to plaintiffs’ summary

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judgment motion. They say that plaintiffs’ claims are moot because President Biden revoked

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Proclamation 9645 issued by former President Trump, and so “the waiver process implemented by

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Unless otherwise stated, all docket number references are to the ECF docket for the Emami case,
No. 18-cv-1587-JD.

United States District Court
Northern District of California

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the U.S. Department of State [pursuant to Proclamation 9645] that is the sole subject of these

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lawsuits no longer exists.” Dkt. No. 202 at 1.

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While the revocation provided substantial relief, it did not moot all of plaintiffs’ claims.

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The government says that plaintiffs “do not suffer any continuing harms from the Department’s

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implementation of the waiver provisions in Proclamation 9645.” Dkt. No. 202 at 12. But

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plaintiffs have demonstrated that their visa applications were denied without the opportunity to

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apply under a properly-administered waiver process, and even if permitted to reapply, they will

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bear undue transactional costs, financial and otherwise, that they should not be required to bear for

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a second time. See, e.g., Dkt. No. 197-6 (Scott Declaration) ¶¶ 13, 19-20; Dkt. No. 197-7

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(Farnoodian-Tedrick Declaration) ¶¶ 13-14. These are genuine injuries that continue to exist

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independent of the revocation, and which plaintiffs seek to remedy.

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The government’s suggestion that, because of the revocation, any order by the Court would

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be tantamount to an “advisory” opinion is also misdirected. Dkt. No. 202 at 15. To start, the

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government rather surprisingly did not adduce proof that the “agency guidance materials relating

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to Proclamation 9645 . . . became defunct with the revocation of Proclamation 9645.” Id. at 16.

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That statement is purely argument by the government’s counsel, without any evidence the Court

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can bank on. As the District of Columbia Circuit Court noted in Almaqrami v. Pompeo, 933 F.3d

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774 (D.C. Cir. 2019), it was not clear that the State Department’s guidance memo in that case

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“expired by its own terms” along with the Executive Order that the memo was related to, and in

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fact there was “‘nothing in the record suggesting that’ the Guidance Memo or the policy it

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announced ‘was ever rescinded or modified.’” 933 F.3d at 783 (internal citations omitted). So too

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here. The government did not establish that the agency guidance materials at issue do not “remain

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on the books for now.” Id. (quoting Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 627 n.5

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(2018)).

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Even assuming for discussion that the government had done that, a genuine dispute

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remains for the Court to resolve. The decision in Uzuegbunam v. Preczewski, 141 S. Ct. 792

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(2021), indicates that the Court may determine the legality of withdrawn materials where, as here,

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plaintiffs have sufficiently alleged that they still have redressable claims. It may be that the Chief
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Justice had some qualms about that, as expressed in his lone dissent, see 141 S. Ct. at 802-03

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(Roberts, C.J., dissenting), but the majority concluded that even though the challenged speech

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restrictions had been withdrawn, the case before the Court was not moot, and there remained a live

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case about the constitutionality of those withdrawn speech policies. See id. at 796-802. The same

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principle applies in full force here.

United States District Court
Northern District of California

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That puts to rest the entirety of the government’s arguments in opposition to summary

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judgment, Dkt. No. 202, and the Court finds that plaintiffs’ submissions affirmatively support a

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grant of summary judgment in their favor. Summary judgment may be granted when there is no

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genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.

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Ecological Rights Foundation v. Federal Emergency Management Agency, 384 F. Supp. 3d 1111,

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1119 (N.D. Cal. 2019). In an APA case, the Court decides summary judgment motions based on a

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review of the agency’s administrative record. Id. The Court’s role is to determine whether the

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agency’s record supports the agency’s decision as a matter of law under the APA’s arbitrary and

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capricious standard of review. See Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 769 (9th

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Cir. 1985). In so doing, the Court may rely on the portions of the record that the parties have cited

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and argued. It is not the Court’s task to “scour the record in search of a genuine issue of triable

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fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations and citations

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omitted).

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Drawing all inferences and viewing all evidence in the light most favorable to the

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government, the Court finds that plaintiffs have met their burden of showing that there is no

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genuine dispute as to any material fact, and that the waiver implementation guidance was arbitrary

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and capricious in violation of the APA. Plaintiffs have come forward with numerous waiver

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criteria -- such as for “undue burden,” “undue hardship,” “national interest,” and “national

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security,” Dkt. No. 197 at 5-7, 21-22 -- for which the government promulgated unduly narrow and

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restrictive limitations, and for which no rational explanations can be found in the administrative

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record, Dkt. No. 98-1.

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Consequently, summary judgment is granted in plaintiffs’ favor on the APA claims
brought under 5 U.S.C. § 706(2)(A). On the issue of a remedy, the Court directs the parties to
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meet and confer, and discuss the following issue: the procedures the government will use

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(i) to confirm that affected applicants wish to have their applications reconsidered, as well as

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(ii) for those interested applicants to update their applications in a way that is least burdensome to

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the applicants but will still provide the government with any necessary updates that would be

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material to the government’s consideration of the applications.

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The summary judgment hearing set for August 16, 2022, at 2:00 p.m. is changed to a status

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conference to discuss the issue identified by the Court. The remote access information remains the

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same. See Dkt. No. 206.

United States District Court
Northern District of California

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The Court expects that plaintiffs’ APA notice-and-rulemaking claims and Accardi claims

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can be dismissed once the remedy issue has been worked out, since the APA arbitrary-and-

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capricious claim should be a sufficient basis for plaintiffs to obtain the totality of the relief they

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are still seeking in this case.

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IT IS SO ORDERED.
Dated: August 1, 2022

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JAMES DONATO
United States District Judge

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