Alharbi v. Miller (368 F. Supp. 3d 527, 2019)

COGAN, District Judge.

Plaintiffs bring this action under the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101 et seq. ; the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. ; Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; 42 U.S.C. § 1985(3) ; and the First, Fifth, and Ninth Amendments. Plaintiffs have moved for class certification, and defendants have moved to dismiss the amended complaint. This decision disposes of both motions.

BACKGROUND

Plaintiff-petitioners are United States citizens or legal permanent residents who filed a Form I-130 Petition for Alien Relative or asylees who filed a Form I-730 Refugee/Asylee Relative Petition on behalf of an immediate relative who is a Yemeni national. Plaintiff-beneficiaries are the immediate relatives on whose behalf the Form I-130 Petitions or Form I-730 Petitions were filed. They fled their homes in Yemen to escape rampant war, famine, and disease, and now reside in Djibouti.

The United States Citizenship and Immigration Services approved each plaintiff-petitioner's Form I-130 Petition or Form I-730 Petition filed on behalf of the plaintiff-beneficiaries. The Form I-130 Petitions and Form I-730 Petitions were then processed by the National Visa Center and forwarded to the United States Embassy in Djibouti (the "Djibouti Embassy"). Each plaintiff-beneficiary completed an immigrant visa interview with a consular officer at the Djibouti Embassy, after which each plaintiff-beneficiary received a piece of paper that said:

Your visa is approved. We cannot guarantee how long it will take to print it and have your passport ready for pick up. You should check the status of your visa online at: https://ceac.state.gov/ceeacstattracker/status.aspx. Please wait at least 24 hours from the point your visa is issued before returning to the Embassy on [day of the week and time].

On September 24, 2017, before any of their visas were printed, the President released Presidential Proclamation 9645, 82 Fed. Reg. 45161, pursuant to Section 212(f) of the INA, 8 U.S.C. § 1182(f). Section 212(f) provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Proclamation 9645 is titled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats." It imposes certain immigration and travel restrictions on individuals from designated countries, including Yemen.

Section 6(c) of the Proclamation, however, is a grandfather clause. It provides that "[n]o immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation."

Section 3(c) of the Proclamation is a waiver provision. It provides in relevant part that consular officers "as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate" and consistent with several additional requirements.

Proclamation 9645 became effective on December 4, 2017, when the Supreme Court issued an order in Trump v. Hawaii, --- U.S. ----, 138 S.Ct. 542, 199 L.Ed.2d 382 (2017), staying a preliminary injunction issued against the Proclamation and permitting the Government to enforce it.

Once Proclamation 9645 was enforceable, the Djibouti Embassy refused plaintiff-beneficiaries' immigrant visas, stating that they were precluded by its terms. Plaintiffs challenge defendants' delay in printing their visas after their interviews, the subsequent refusal of their visas based on the Proclamation, and defendants' refusal to provide plaintiffs a Proclamation waiver.

PROCEDURAL HISTORY

Plaintiffs originally filed a complaint on behalf of 61 individuals who are members of 21 Yemeni families. Plaintiffs sought an order mandating that defendants immediately adjudicate their immigrant visa applications. The Court found that documentary and declaratory evidence suggested that 27 plaintiff-beneficiaries were issued approval notices after their consular interviews, construed those approval notices as issued visas under Section 6(c) of Proclamation 9645, and issued a preliminary injunction ordering the Government to complete any necessary security screenings for those plaintiffs and to issue visas to the individuals who cleared the assessments. Defendants complied with their obligations under the preliminary injunction.

In addition, defendants represent that the Government has sua sponte reconsidered or is in the process of reconsidering each plaintiff's visa or waiver refusal under Section 3(c) of Proclamation 9645. Most plaintiffs were issued immigrant visas as a result of this review, although some individuals were denied visas on substantive grounds of inadmissibility unrelated to Proclamation 9645, and some individuals have yet to be reconsidered.

Once defendants complied with the terms of the preliminary injunction, they moved to dismiss the complaint. Plaintiffs filed an amended complaint, adding additional plaintiffs and claims. The amended complaint seeks an order mandating defendants to "correctly adjudicate" their immigrant visa applications, "print and issue" the visas, and provide plaintiffs with an opportunity to submit a waiver to complete adjudication of their immigrant visa applications. The amended complaint also seeks monetary damages.

DISCUSSION

I. Motion for Class Certification

Plaintiffs seek to certify the following class under Federal Rule of Civil Procedure 23(b)(2) :

All individuals who were: 1) citizens or nationals of Yemen, Syria, Iran, Somalia, [and] Libya, [ ] 2) who received a visa approval from any US Embassy upon completion of the Plaintiff-Beneficiary's immigrant visa interview between February 25, 2016 to December 8, 2017, and 3) whose visa was not printed and/or not distributed after having been informed by the Embassy that their visa was approved.

Under Rule 23(b)(2), "[a] class action may be maintained if Rule 23(a) is satisfied and if ... the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Thus, "plaintiffs must meet both the requirements for the [injunctive relief sought], as well as the threshold requirements for class certification under Rule 23(a)," before a class action may be certified. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir. 2015).

Rule 23(a) has four requirements: "numerosity, commonality, typicality, and adequate representation." These "threshold" requirements "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

"The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). As the Supreme Court has made clear, " Rule 23 does not set forth a mere pleading standard." Wal-Mart, 564 U.S. at 349, 131 S.Ct. 2541. Rather, plaintiffs "must affirmatively demonstrate [their] compliance with the Rule - that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. (emphasis in original). Indeed, a class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

The crux of defendants' opposition to class certification rests on the commonality prong, so the Court will take the Rule 23(a) factors out of turn, and address commonality first.

A. Commonality

To certify a class under Rule 23(a), there must be "questions of law or fact common to the class." See Fed. R. Civ. P. 23(a)(2). Commonality requires plaintiffs to demonstrate that the class members have suffered the same injury, not just that they have suffered a violation of the same law. See Wal-Mart, 564 U.S. at 349-50, 131 S.Ct. 2541. "Their claims must depend upon a common contention," which itself "must be of such a nature that it is capable of classwide resolution." Id. In other words, the class action must have the capacity "to generate common answers apt to drive the resolution of the litigation." Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009) ).

Plaintiffs claim that their common contention - "that they had visa applications that were approved but not printed/distributed before the Proclamation came into effect and that subsequent to the Proclamation being implemented these visas were unlawfully withheld" - is capable of classwide resolution. Because plaintiffs believe that the Government has treated them according to a "seemingly uniform policy," they argue that their allegations can be resolved with equal uniformity.

Plaintiffs acknowledge, however, that there are factual differences among them. Those differences include "matters such as the basis upon which Plaintiff-beneficiaries were eligible for visas, when and how the visa approval was communicated to the beneficiary, and the details of the eventual assertion of a visa refusal or denial citing the Proclamation by an embassy."

These are not mere background differences between putative class members, as plaintiffs contend. These differences prohibit a common answer that would drive resolution of their claims. This in many respects is because immigration decisions are uniquely fact-based determinations that are dependent not only on the individualized history of each applicant but also on the law in place at the time of their application. Here, the most obvious barrier to commonality is plaintiffs' concession that the visa "approvals" were communicated in different ways and at different times to each plaintiff-beneficiary.

If a plaintiff-beneficiary did not receive one of the contested approval notices before the Proclamation became enforceable, then that individual is differently situated in a material way from the plaintiff-beneficiaries who did receive approval notices during the relevant time. That is because the Court must first determine whether the approval notice even constitutes an "approval," or more precisely, an issued visa under Section 6(c) of the Proclamation, as plaintiffs argue it does, before those plaintiffs can proceed with this lawsuit.

Moreover, the amended complaint does not include any detailed factual allegations describing how any plaintiff or putative class member was approved for (and subsequently denied) a visa other than by receiving an approval notice and a refusal based on Proclamation 9645. Thus, any of the putative class members who did not receive such a notice - but who still claim to have been approved for a visa and subsequently refused that visa - would have suffered a qualitatively different injury than the plaintiffs who are named or referenced in the amended complaint. Plaintiffs have not shown that their injuries inter se are capable of the same resolution as the individuals who received an approval notice. Thus, the only individuals who might have questions common to them are those plaintiff-beneficiaries who received an approval notice from the Djibouti Embassy but subsequently had their visas refused based on Proclamation 9645, and those plaintiff-petitioners who applied for the immigrant visas on their behalf.

But that begs the question of whether the receipt of an approval notice is enough to establish commonality for the purpose of Rule 23(a). It is true that the threshold question of whether the issuance of the approval notice constitutes the issuance of an immigrant visa will resolve a question of law common to those individuals. For example, if the Court determines that an approval notice constitutes an issued visa under Section 6(c) of the Proclamation, then the Court could issue an injunction similar to the preliminary injunction previously issued in this case, directing defendants to conduct any necessary security screenings and print visas for those plaintiff-beneficiaries who pass the assessments and otherwise meet the requirements to obtain a visa.

Defendants argue that because each named plaintiff and each putative class member will be differently situated with respect to these subsequent steps following the issuance of any injunction, including the necessary dispositive security assessments, there is no commonality among them. In other words, because each plaintiff cannot receive a visa - which is the ultimate form of relief sought in the amended complaint - without individualized scrutiny, and because some individuals might receive visas and others might not, there is no common answer appropriate to direct classwide relief.

The Court agrees with defendants - as it did during the preliminary injunction phase - that it cannot simply direct the Government to print visas for each plaintiff and class member, because each individual would require additional necessary security and vetting procedures before they can receive an immigrant visa and travel packet. For this reason, plaintiffs' ultimate request that the Court mandate that defendants print their visas without any further delay is improper.

But the slightly different question of whether each plaintiff even gets to reach that security screening step is capable of classwide resolution. Indeed, it is the one primary (and dispositive) question that must be determined in the motion to dismiss discussed below. In other words, as plaintiffs even concede, the plaintiffs who received approval notices and were subsequently denied a visa pursuant to Proclamation 9645 have all either suffered an identical injury, or they have all failed to state a claim and cannot obtain any relief.

In this respect, plaintiffs' claims are unlike those raised in Wal-Mart v. Dukes, 564 U.S. 338, 131 S.Ct. 2541. There, commonality was not established because to determine whether each putative class member was subject to discriminatory employment practices, which was the common injury alleged in the complaint, would have required individualized consideration of each plaintiff's claims to determine whether they suffered a violation of law. But here, whether the visa refusals based on Proclamation 9645 constitute a violation of law is a question that is identical for everyone who received a visa approval. In other words, plaintiffs' theory can be proved on a classwide basis because the individualized consideration that must be given to each plaintiff with respect to their visa eligibility would follow, not precede, any finding by the Court that a violation of law occurred.

Thus, the commonality prong is met, so long as the common question is viewed as whether the receipt of an approval notice constitutes the issuance of an immigrant visa under Section 6(c) of the Proclamation. Indeed, the common question must be viewed this way, because that is the only alleged injury that each plaintiff suffered.

B. Numerosity

Under Rule 23(a), the class must also be "so numerous that joinder of all members is impracticable." There are two aspects of the numerosity prong: whether there is a sufficient number of putative class members, and whether joinder, as opposed to class certification, would be impracticable.

Generally, "numerosity is presumed at a level of 40 members." Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing 1 Newberg On Class Actions 2d, (1985 Ed.) § 3.05) ). But because there "are no strict rules governing the precise number of plaintiffs needed to satisfy the numerosity requirement[,] ... the focus of the [ ] inquiry is on the impracticability of joinder."

Strykers Bay Neighborhood Council, Inc. v. City of New York, 695 F.Supp. 1531, 1538 (S.D.N.Y. 1988) (internal citations omitted). "Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers." Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (citing Demarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968) ). "Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members." Id.

Plaintiffs state that, in addition to the plaintiffs who are named (or referenced) in the amended complaint, their counsel is "aware of approximately 800 other individuals who interviewed at the Djibouti embassy who may fall in the same class." Counsel is aware of these individuals "based on research and experience from [their] office in Djibouti." Plaintiffs also refer to "an unknown number of individuals from other locations who had had their properly approved visas unlawfully withheld."

Although the Government concedes that the putative class would include over 40 members - which suggests that the numerosity prong is established - the Court must address several deficiencies in plaintiffs' numerosity allegations, as the Court is obligated to conduct a rigorous analysis into whether Rule 23(a)'s requirements have been met before it may permissibly certify a class.

First, plaintiffs have not advanced any evidence to suggest that any of the 800 or more putative class members received an approval notice from the Djibouti Embassy. Plaintiffs' allegations that a majority of the named plaintiffs received such a notice does not compel the conclusion that anyone else did too. The fact that plaintiffs' counsel's research suggests that these hypothetical 800 individuals "may fall into the class" (emphasis added) is not nearly enough, especially considering that counsel did not put forward the results of that research for the Court or defendants to assess in determining the true scope of the putative class. See In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 (2d Cir. 2006), decision clarified on denial of reh'g sub nom. In re Initial Pub. Offering Sec. Litig., 483 F.3d 70 (2d Cir. 2007) ("[T]he requirements of Rule 23 must be met, not just supported by some evidence.").

Although plaintiffs have attached to the amended complaint the approval notices that many named plaintiffs received, Rule 23(a) requires them to make an affirmative showing that there are in fact numerous other similarly situated individuals before the Court can certify a class of those individuals. Plaintiffs have failed to do that. Instead, it appears that the 800 number advanced by plaintiffs represents the number of individuals who may have interviewed for an immigrant visa at the Djibouti Embassy during the relevant time, not the number of individuals who are similarly situated to the named plaintiffs with respect to the relevant events that occurred after their interviews.

Second, plaintiffs have not advanced any evidence to suggest that any of the 800 or more putative class members received an approval notice from any other embassy besides the Djibouti Embassy. Although plaintiffs attach to the amended complaint what they contend are "approval notices from around the world," there is no apparent connection between those documents and the putative class. As far as the Court can tell, these approval notices were allegedly issued by United States embassies in Mexico, El Salvador, Egypt, and China;

but plaintiffs' allegations involve only the Djibouti Embassy. Plaintiffs have provided nothing other than the approval notices received by certain of the named plaintiffs from the Djibouti Embassy and the mere existence of four different approval notices issued by other embassies to suggest that any of the 800 or more members of the putative class received an approval notice from any United States embassy at any point. This is not enough to establish the existence of other class members under the numerosity prong.

Third, plaintiffs have not advanced any evidence to suggest that any of the 800 or more putative class members are from Syria, Iran, Somalia, or Libya. The fact that these countries do not have embassies with consular services - like Yemen - does not establish that individuals from these four countries are similarly situated to the named plaintiffs or the putative class. Nor does the fact that Proclamation 9645 imposes similar travel and immigration restrictions on individuals from these countries as those imposed on Yemeni nationals make individuals from those four countries more likely to have received an approval notice from either the Djibouti or any other embassy.

Plaintiffs' argument that "[i]f the beneficiaries who are nationals of these four nations suffer conduct from Defendants that is more or less egregious than the conduct Plaintiffs named in the FAC suffer, then Defendants should explain how that could be" is an entirely insufficient basis upon which to grant class certification. Plaintiffs' use of "if" - like the "may" with respect to the breadth of the putative class rejected above - implies a fishing expedition, which class certification is not. Plaintiffs did not request additional class discovery, and they have failed to meet their burden of showing that there are in fact other individuals who have suffered the same purported injury as those plaintiffs named in the amended complaint. A class cannot be certified on the speculation of plaintiffs' counsel. Rather, it must be certified on their proof, which plaintiffs have not supplied.

Plaintiffs' further argument that the Government is in a better position to determine class membership is well-taken, but ultimately unpersuasive. First, plaintiffs' counsel has an office in Djibouti, through which they were already able to successfully identify over 100 individuals to name in this lawsuit (and purportedly research and ascertain the existence of 800 other individuals). Second, defendants represent that the only way the Government can identify an individual who received one of the contested approval notices is if they came forward and produced a copy of the notice. Although plaintiffs scoff at this assertion, finding it incredulous that the Government would not keep adequate records of this information, the Court will not assume the Government is misrepresenting its ability to determine who received an approval notice. This is especially true given that defendants have maintained throughout the pendency of this litigation that the approval notices were issued in error and their records indicate uniformly that each of the plaintiffs were originally denied an immigrant visa. Based on the information submitted with the motion for class certification, it does not appear that the Government can do anything more than plaintiffs' counsel to identify potential class members.

Thus, the putative class at best consists of a group of 136 individuals, who plaintiffs have specifically alleged or shown with documentary evidence to have received an approval notice. Although this number is greater than 40, plaintiffs cannot show that "members of the alleged class are so numerous as to make it impracticable to bring them all before the court." Demarco, 390 F.2d at 845. Each of these individuals has already joined this action and is either named or directly referenced in the amended complaint, so it can hardly be said that joinder is impracticable. See Daigle v. Shell Oil Co., 133 F.R.D. 600, 603 (D. Colo. 1990) (finding numerosity prong was not met because joinder was not impracticable where only 78 individuals expressed interest in joining the lawsuit and all 78 were already named as plaintiffs). Nor for that matter would considerations of plaintiffs' geography or financial resources, or considerations of judicial economy bear on the outcome, because by joining this action, each plaintiff has confirmed that those factors did not dissuade them from individually pursuing their claims.

"What evidence there is in the record as to the size of the 'class' and the impracticability of joinder is pure speculation," Demarco, 390 F.2d at 845, and a class cannot be certified on speculation. Thus, the numerosity prong is not met.

C. Ascertainability

In addition to its express requirements, the Second Circuit has "recognized an implied requirement of ascertainability in Rule 23 of the Federal Rules of Civil Procedure." Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (internal quotation marks and citations omitted). The "touchstone of ascertainability is whether the class is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Id. (internal quotation marks and citations omitted). "A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case." Id. at 24-25 (quoting Charron v. Pinnacle Grp. N.Y. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010) ). In other words, "the members of a proposed class [must be] readily identifiable." In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir. 2017).

Besides their failure to meet the four threshold statutory requirements of Rule 23(a), plaintiffs have also failed to show the implied requirement that their putative class is ascertainable. This analysis overlaps somewhat with both the commonality and numerosity prongs, because based on defendants' representations, there is no way to identify, unless they come forward, individuals who have received an approval notice or the immigration status of those individuals.

First, and most glaring, is that the approval notices are not official records of the Government. They are not dated, nor do they have any identifying or authenticating information on them. Once any individual comes forward with their approval notice, it would still require a mini-hearing on the merits of their claim before the parties and the Court could determine whether that individual is a putative class member. Defendants would have to review their records to determine whether that individual actually interviewed with the Djibouti Embassy, and when; whether they were refused pursuant to Proclamation 9645, on substantive grounds of inadmissibility, or not at all; and further, whether that individual received their approval notice before or after the Proclamation became effective; among other inquiries. The merits of each of their immigration statuses would also need to be vetted before they could be recognized as a member of the class.

Second, as defendants point out, the immigration status of any potential class member could change over the course of the litigation. For example, those plaintiffs undergoing defendants' sua sponte reconsideration of their visa waiver or refusals might be issued (or substantively refused)

an immigrant visa before they would otherwise receive their requested relief in this case. Indeed, that has already happened, because some putative class members were issued visas and travel packets after having been previously refused under the Proclamation and other putative class members were denied visas based on substantive grounds of inadmissibility after having previously been refused under the Proclamation.

This shows that, at any point during the litigation, the Court and the parties might not know who in fact is in the class. This risk is untenable, because the class action would be impossible to manage. See Brecher, 806 F.3d at 25 n.3 (finding class certification inappropriate for lack of ascertainability where "the identity of class members will remain fluid even following entry of judgment, since nothing in the new class definition freezes the class composition at any designated time").

Although the Second Circuit has explicitly rejected the adoption of a "freestanding administrative feasibility requirement" in this analysis, ascertainability still requires that "a class be defined using objective criteria that establish a membership with definite boundaries." In re Petrobras, 862 F.3d at 264. It is not simply that a class action would be unfeasible in this case; it is that at any given moment, the parties and the Court would have to assess the merits of every individual's claim to know whether their allegation of class membership is or remains viable. This renders the putative class insufficiently definite.

Because plaintiffs have met neither the express nor implied requirements of certifying a class under Rule 23, their motion for class certification is denied.

II. Motion to Dismiss

Defendants argue that most of the named plaintiffs' claims should be dismissed as moot, because they have already been issued immigrant visas.

Defendants have also moved to dismiss certain of plaintiffs' claims under Rules 12(b)(1) and 12(h)(3), for lack of subject matter jurisdiction, and others under Rule 12(b)(6), for failure to state a claim. The Court will address each basis to dismiss in turn.

A. Mootness

"Article III of the Constitution limits federal-court jurisdiction to 'cases' and 'controversies.' " Campbell-Ewald Co. v. Gomez, --- U.S. ----, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (citing U.S. Const., Art. III, § 2). An "actual controversy [must] be extant at all stages of review, not merely at the time the complaint is filed." Id. (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ).

"There is [ ] no case or controversy, and a suit becomes moot, when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) ). In other words, a case becomes moot "when it is impossible for a court to grant any effectual relief whatever to the prevailing party.' " Campbell-Ewald Co., 136 S.Ct. at 669 (quoting Knox v. Service Employees, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ). "No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute 'is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.' "

Already, LLC, 568 U.S. at 91, 133 S.Ct. 721 (quoting Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) ).

Defendants claim that those plaintiffs who have been issued immigrant visas (whether pursuant to the original preliminary injunction issued in this case or the Government's subsequent sua sponte reconsideration of each plaintiff's visa refusal or waiver eligibility) no longer present a live case or controversy and thus, their claims must be dismissed as moot.

The Court agrees that the alleged wrongful conduct as to those plaintiffs - delaying or failing to issue their visas - has been remedied. At this point, they have been issued their immigrant visas, which is the relief they sought in the amended complaint. There is nothing more that the Court can order defendants to do with respect to those plaintiffs. Plaintiffs seem to concede this point, albeit by silence rather than explicitly.

This is not a situation where defendants have temporarily halted their allegedly unlawful conduct while maintaining the possibility of engaging in that conduct again (which, of course, cannot render a case moot). See Already, LLC, 568 U.S. at 91, 133 S.Ct. 721. Plaintiffs have already gone through the application and interview process. Having received a visa at the end of that process, they cannot fairly expect this conduct to happen to them again. The injuries that they alleged to have suffered have been remedied in full.

Nor does this case fall "within the exception to the mootness doctrine for those situations capable of repetition, yet evading review." Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (citing Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911) ). Where, as here, a class action has not been certified, "that exception is unavailable unless "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) ). As explained above, no plaintiff who has received an immigrant visa can reasonably expect to be subjected to the same purportedly illegal conduct again. Because both prongs of this test have not been met, this exception to the mootness doctrine does not apply.

Plaintiffs also argue, however, that these individuals' claims are not moot because they still maintain an interest in having their rights declared. But the Court cannot declare retroactively that the delay or refusal that any single plaintiff experienced before their visa was issued constituted a violation of that plaintiff's rights.

The Second Circuit's long-standing precedent with respect to college graduates' claims against the universities they attended is informative here. In those cases, the Second Circuit has consistently held that "students' declaratory and injunctive claims against the universities that they attend are mooted by the graduation of the students," because following their graduation, the court cannot do anything to redress the injury that they allegedly suffered while they were a student. Fox v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994). Applying that principle here, plaintiffs who have already been issued their immigrant visas similarly do not have a "distinct and palpable injury ... that the exercise of the Court's remedial powers would redress." Alexander v. Yale Univ., 631 F.2d 178, 183 (2d Cir. 1980) (internal quotation marks and citations omitted).

Moreover, plaintiffs have not explained why they have any real interest in such a declaration, or how such a declaration would provide any legally cognizable benefit to them. Indeed, they have received precisely what they asked for, and the Court cannot afford them anything further with respect to the injunctive and declaratory relief sought in the amended complaint. As a result, these plaintiffs no longer have a "concrete interest" in the outcome of that aspect of the litigation. See Campbell-Ewald Co., 136 S.Ct. at 669 (citing Chafin, 568 U.S. at 172, 133 S.Ct. 1017 ).

Their claims for monetary damages, however, are different. Generally, a viable damages claim will trigger the Court's remedial powers even if the Court cannot provide injunctive or declaratory relief. See Cook, 992 F.2d at 19. The amended complaint makes repeated mention of financial hardship across plaintiffs, and it raises claims for damages under Bivens, 403 U.S. 388, 91 S.Ct. 1999, as well as other general demands for "damages." Although the "Prayer for Relief" does not include any mention of damages, the amended complaint can be fairly construed to raise those claims.

Thus, the following plaintiffs' claims for injunctive and declaratory relief are dismissed as moot: Nugood Motaher Mussed Ahmed, Ruqaia Taher Aldafri, Altazam Mohamed Nagi Algaad, Lutfiah Ali Abdo Algamal, Ahmed Riyadh Ahmed Alharbi, Fadel Saleh Alharbi, Gameelah Naji Mohammed Alharbi, Riyadh Ahmed Nagi Alharbi, Hussein Saeed Ali, Laila Hussein Saeed Ali, Tahani Musa Ahmed Ali, Wedad Essmail Ali, Bassam Ahmed Murshed Al Montaser, Fadil Ali Al Mulaiki, Zahr Almulaiki, Samia Mohamed Saleh Al Namer, Abduh Ahmed Alqassari, Ahmed Mohammed Hamood AL Saidi, Rashed Ameen Ashugaa Addin Ali Al Shugga, Hizam Fadil Alzookari, Ahmed Gamil Ahmed Assaedy, Gamil Ahmed Assaedy, Nidal Abdoalwahab Moh Ashieeby, Mohammed Saleh Husain, Yaseen Mohamed Saleh Husain, Abdulla Mohamed Mugamal, Hussain Abdulla Mohamed Mugamal, Layan Salah Abdulla Mugamal, Nooria Salh Abdulla Mugamal, Sadam Hussain Abdulla Mugamal, Salah Abdulla Mohamed Mugamal, Yaseem Hussain Abdulla Mugamal, Saleh Hizam Murshed, Yahya Hizam Murshed, Ali Ahmed Mussa, Iseal Ali Ahmed Mussa, Hanan Mohamed Nagi, Arwa Mohamed Qahtan, Redan Mohamed Nasser Qahtan, Abdulbaset Abdulsamad Rageh, Ghadeer Yahya Hizam Murshed Rageh, Aisha Mohamed Abdulatif Ragih, Dheyazan Qasem Thabit Saeed, Saif Dheyazan Saeed, Kaid Mohamed Saleh, Nadia Abdo Niga Saleh, Kamal Nasser Salim, Nasser Kamal Nasser Salim, Aisha Hussein Abdulrahman Thabit, Qasem Hussein Abdulraham Thabit, Taha Hussein Abdulrahman Thabit, Ehtiram Ali Abdo Yahya, Sumaia Abdulla Saleh Abdulrahman, Ahmed Omar Mohammed Al Amodi, Sultan Abdulsalam Ahmed Al Awdi, Ghadeer Abdullah Al-Howthi, Ali Hamood Mohamed Ali, Abdulaziz Redwan Essmail Mohamed Ali, Aisha Redwan Essmail Mohamed Ali, Fatima Redwan Essmail Mohamed Ali, Faryan Redwan Essmail Mohamed Ali, Montaser Redwan Essmail Mohamed Ali, Nesmah Abdo Mohammed Ali, Redwan Essmail Mohamed Ali, Riyadh Redwan Essmail Mohamed Ali, Kafa Murshed Ahmed Dhaif Allah Al-Muntaser, Abdulraqeb Saleh Ahmed Hadi, Awad Abdulraqeb Saleh Ahmed Hadi, Basma Abdulraqeb Saleh Ahmed Hadi, Gana Abdulraqeb Saleh Ahmed Hadi, Kawthar Abdulraqeb Saleh Ahmed Hadi, Mohammed Mosed Kassim Hadi, Abeer Kahtan Mohammed Jaber, Entibah Ali Hazam Marched, Ali Ahmed Murshed, Hassan Hazam Shukri Murshed, Sabah Shukri Hasan Hazam Murshed, Tamnia Shukri Hassan Hazam Murshed, Mariam Muthana, Noor Muthana, Mohamed Jamil Qasem Al Hadai, Rukayah Mokbel Ali Ghalieb, Ali Shukri Hasan Murshed.

The only individuals with a live, justiciable case or controversy with respect to the claims for injunctive and declaratory relief in the amended complaint are those plaintiffs who have yet to receive an immigrant visa despite having received an approval notice, and those plaintiffs who were refused an immigrant visa, either for substantive inadmissibility reasons or based on Proclamation 9645.

B. Lack of Subject Matter Jurisdiction

Defendants have moved to dismiss Counts One, Two, Five, and Nine for lack of subject matter jurisdiction. These counts generally challenge defendants' decision to refuse plaintiffs' immigrant visas after having issued them an approval notice.

Under Rules 12(b)(1) and (h)(3), a district court must dismiss an action if it "determines at any time that it lacks subject-matter jurisdiction." "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1) ).

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (internal citations omitted). And "[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings." Id. (internal citations omitted).

1. Count 1: Mandamus Act, 28 U.S.C. § 1361

The INA prohibits aliens from entering or permanently residing in the United States without a visa. See Kerry v. Din, --- U.S. ----, 135 S.Ct. 2128, 2131, 192 L.Ed.2d 183 (2015) (citing 8 U.S.C. § 1181(a) ). There is a special application process, however, for aliens whose immediate relatives permanently reside in the United States. As is generally described above, a United States citizen or lawful permanent resident may file a petition on behalf of an alien who is their immediate relative, and if that petition is approved, "the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer." Id. (internal citations omitted).

The United States Department of State Foreign Affairs Manual and Handbook (the "FAM") - which governs the duties and responsibilities of consular officers in issuing and refusing immigrant visas - provides that "[o]nce an application has been executed, [the consular officer] must either issue the visa or refuse it." 9 FAM § 504.9-2. But "[b]efore issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA." Din, 135 S.Ct. at 2131 (citing 8 U.S.C. § 1361 ).

Plaintiffs generally allege that defendants issued visa approval notices to them, thereby approving their visas, and then purposefully delayed in printing the visas and wrongfully relied on Proclamation 9645 to refuse them. Plaintiffs cite to the grandfather clause, Section 6(c) of Proclamation 9645, in support of their argument that defendants' refusals based on the Proclamation were wrongful. According to plaintiffs' theory of the case, because their visas were "issued" before the Proclamation took effect, those visas cannot be denied because of the Proclamation. As a result, plaintiffs seek an order under the Mandamus Act, 28 U.S.C. § 1361, to compel defendants to complete the processing of their immigrant visas and "issue a facially legitimate and bona fide determination in good faith."

Under 28 U.S.C. § 1361, a district court has original jurisdiction "of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." "To establish jurisdiction under 28 U.S.C. § 1361, [plaintiffs] must show (1) a clear right to the relief sought; (2) a plainly defined and peremptory duty on the part of defendants to do the act in question; and (3) that there is no other adequate remedy available." Khanom v. Kerry, 37 F.Supp.3d 567, 577 (E.D.N.Y. 2014) (internal quotation marks, citations, and alterations omitted).

Defendants argue that the Court does not have jurisdiction to hear these claims under the doctrine of consular nonreviewability. "[T]he doctrine of consular nonreviewability precludes judicial review of a consular official's decision to issue or withhold a visa." Abdo v. Tillerson, No. 17 CIV. 7519, 2019 WL 464819, at *3 (S.D.N.Y. Feb. 5, 2019) (internal citations omitted); see also Khanom, 37 F.Supp.3d at 577 (finding that alien plaintiffs did not have a clear right to an order compelling the issuance of a visa and defendants did not have a plainly defined and peremptory duty to grant plaintiffs the visa "because the decision to issue or deny a visa is firmly rooted in the discretion of the Consul General").

Rather, when an alien challenges a consular decision to deny them an immigrant visa, the Court's review is limited to whether defendants have advanced a "facially legitimate and bona fide reason" for that refusal. Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). If such a reason is provided, the Court cannot "look behind the exercise of that discretion, nor test it by balancing its justification against" the constitutional interests asserted by the alien who was refused. Id.

Plaintiffs argue that the Court is not bound by the consular nonreviewability doctrine pursuant to Justice Kennedy's concurring opinion in Kerry v. Din, 135 S.Ct. 2128, because the consular officers' decisions to delay printing or to refuse their visas were made in bad faith. As Justice Kennedy explained, the Court can "look behind" the asserted justification for the refusal if there is an "affirmative showing of bad faith on the part of the consular officer who denied" the alien the visa. Id. at 2141 (Kennedy, J., concurring in the judgment).

The amended complaint alleges that the consular officers "acted in bad faith by permitting other federal agencies to make the final determination on" their immigrant visas. But mere statements that the "consular officer has acted in bad faith by following instructions from an outside agency that has neither the authority nor the jurisdiction to issue instructions regarding the approval of visas" are not enough to permit judicial review of those consular officers' decisions.

Plaintiffs have not included any facts to support their claim of bad faith. At best, their amended complaint can be read to allege that, instead of printing plaintiffs' visas once they were "approved," and thus "issuing" them to plaintiffs, defendants listened to unspecified instructions given by an unidentified outside agency to delay printing the visas for an unspecified amount of time so that they could later refuse the visas based on Proclamation 9645.

This is textbook conclusory pleading. Plaintiffs' speculation does not amount to facts, and a complaint must include enough facts to "nudge[ ] [plaintiffs'] claims ... across the line from conceivable to plausible." Iqbal, 556 U.S. at 680, 129 S.Ct. 1937 (internal quotation marks omitted). As the Supreme Court explained in Ashcroft v. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 :

To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of a contract, combination or conspiracy to prevent competitive entry, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.

The same is true here. Justice Kennedy was clear in his concurrence that an alien must first make an "affirmative showing" of bad faith before the Court can examine the propriety of a consular officer's decision to deny them a visa or look for additional factual details beyond that which was provided to the alien. Din, 135 S.Ct. at 2141 (Kennedy, J., concurring in the judgment). Bad faith must be "plausibly alleged with sufficient particularity," id., and the allegations must be "well supported," see Gogilashvili v. Holder, No. 11-CV-01502, 2012 WL 2394820, at *7 (E.D.N.Y. June 25, 2012) (citing Napolitano, 573 F.3d at 137 ).

Here, plaintiffs' allegations of bad faith are neither plausible nor particular, and they are certainly not well supported by any factual allegations. As a result, the Court's review of plaintiffs' visa denials is constrained to whether defendants have advanced a facially legitimate and bona fide reason for those refusals.

Different categories of plaintiffs received different reasons for their refusals, so the Court must address each group of plaintiffs individually.

The individuals listed on Appendix D attached to defendants' reply memorandum in support of their motion to dismiss were denied immigrant visas based on substantive inadmissibility reasons, not Proclamation 9645. Those substantive grounds of inadmissibility constitute a facially legitimate and bona fide reason for refusing their visas. Even Justice Kennedy in his concurrence in Kerry v. Din recognized that the Government is not required to provide anything more than the statutory provision under which the consular officer denied the alien's visa. That remains the case even if that provision covers a broad range of conduct and the general statutory citation does not indicate the specific subsection or conduct that precipitated the refusal. See Din, 135 S.Ct. at 2141 (Kennedy, J., concurring in the judgment). Having received a facially legitimate and bona fide reason for their refusal, the Court cannot look beyond that reason under the doctrine of consular nonreviewability.

Moreover, even if defendants' issuance of the approval notices constituted an approval or an issued visa, which was later refused on substantive inadmissibility grounds, the INA provides that a consular officer's decision to revoke a previously-issued visa is not subject to judicial review. See 8 U.S.C. § 1201(i). Thus, the Court simply cannot review these refusals.

As a result, the following individuals' claims are dismissed for lack of subject matter jurisdiction: Alya Mohammed Ali Ahmed, Jehan Fateh Musleh Al Najjar, Duaa Emad Abdulla Mugamal, Emad Abdulla Mohamed Mugamal, Mohamed Emad Abdulla Mugamal, Musleh Emad Abdulla Mugamal, Shahd Emad Abdulla Mugamal, Sultan Saleh Ali Obaid, Mona Saleh Ali Obaid, Yassin Mohamed Taher, and Mohamed Ahmed Taher.

The plaintiffs reflected on Appendices E, F, and G, however, have not received immigrant visas nor were they rejected on substantive grounds of inadmissibility. These plaintiffs received an approval notice, but their visas were subsequently refused under Proclamation 9645, and their status has not changed since. Although these plaintiffs are currently undergoing the Government's sua sponte case-by-case waiver analysis, the Court must determine whether their refusals based on Proclamation 9645 were facially legitimate and bona fide.

Under these circumstances, a refusal based on Proclamation 9645 could only be facially legitimate and bona fide if these plaintiffs were not issued visas before the effective date of the Proclamation. Otherwise, their visas could not be revoked under the Proclamation, pursuant to its grandfather clause. This turns on whether the issuance of the approval notices qualifies as an issuance of plaintiffs' visas under Section 6(c) of the Proclamation.

Defendants maintain that the approval notices that plaintiffs received do not mean that their immigrant visas were issued for purpose of Proclamation 9645's grandfather clause. Plaintiffs, of course, assert that they do. The Court previously found that plaintiffs were likely to succeed on the merits and issued a preliminary injunction ordering defendants to conduct the necessary security screenings and print immigrant visas for plaintiffs who successfully cleared those security assessments.

Although they do not say it explicitly, plaintiffs seem to rely on the Court's decision in issuing the preliminary injunction as law of the case, and demand that the Court issue a similar order for the additional plaintiffs named in the amended complaint. But plaintiffs have provided no reason why the Court should adhere to its preliminary decision, other than the bald assertions made in the amended complaint that defendants acted purposefully, with discriminatory animus, and in bad faith.

A district court's decision to grant a temporary or preliminary injunction "does not constitute the law of the case and will not estop the parties nor the court as to the merits of the case." Sec. & Exch. Comm'n v. N. Am. Research & Dev. Corp., 59 F.R.D. 111, 113 (S.D.N.Y. 1972) (quoting Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948) ). "This rule stems from the due process requirement that the parties should not be foreclosed on the merits by a hearing that expressly addressed only preliminary questions, and at which [the] parties may not have presented their best possible case." Id. Rather, as the Second Circuit has explained:

A preliminary determination of likelihood of success on the merits in a ruling on a motion for preliminary injunction is ordinarily tentative, pending a trial or motion for summary judgment.... It would therefore be anomalous at least in most cases, and here, to regard the initial ruling as foreclosing the subsequent, more thorough consideration of the merits that the preliminary injunction expressly envisions.

Goodheart Clothing Co. v. Laura Goodman Enterprises, Inc., 962 F.2d 268, 274 (2d Cir. 1992).

Thus, the Court is not wedded to its previous determination that the approval notices constitute issued visas under Section 6(c) of the Proclamation. With the benefit of complete briefing of the merits of plaintiffs' claims, the Court must now determine whether plaintiffs were "issued" immigrant visas for the purpose of Section 6(c) of Proclamation 9645.

According to the amended complaint and the documents attached to it, following their immigrant interviews with a consular officer, plaintiffs were given a single sheet of paper informing them that their visas were approved but that they were not ready to be printed or picked up. This piece of paper did not bear an official insignia or stamp, it was not signed or dated, and it did not identify the alien or interviewing consular officer by name or provide any other identifying or biographical information (other than the alien's case number).

In other words, plaintiffs were given a sheet of paper that did not have on it any semblance of officiality or authority. But "to issue" means "[t]o accrue," "[t]o be put forth officially," or "[t]o send out or distribute officially." Issue, Black's Law Dictionary (10th ed. 2014). Although the notices indicated that their visas were approved, there was nothing "official" about them. As defendants point out, plaintiffs could not travel or enter the country with one of these approval notices. It is not a proxy for a visa, and it is apparent from each plaintiff's experience that it cannot be traded in for a visa at the Djibouti Embassy.

The fact that the approval notice did not purport to be, or even resemble, an official document alone suggests that plaintiffs were not "issued" visas before Proclamation 9645's effective date for the purpose of the grandfather clause. This conclusion is further supported by the regulatory and statutory scheme pursuant to which a consular officer may issue or refuse an immigrant visa. At the preliminary injunction stage, the Court focused on the binary nature of a consular officer's decision to issue or refuse a visa following plaintiffs' immigrant interviews. Indeed, the instructions governing the consular officers' conduct are exacting on this point. As noted above, the FAM provides that "[o]nce an application has been executed, [the consular officer] must either issue the visa or refuse it. [The consular officer] cannot temporarily refuse, suspend, or hold the visa for future action." There are no exceptions to this rule. See 9 FAM § 504.11-2(A)(a).

Thus, if the consular officer decides to approve an immigrant visa, the officer must immediately issue it. Conversely, if a consular officer refuses an immigrant visa, the alien must be provided with a document that sets forth the reason or reasons for their refusal. See 9 FAM § 504.9-2. As the Court said in its order issuing the preliminary injunction, there is no third option. The visa must be issued or refused. Because these duties are non-discretionary; because plaintiffs were not told their visa was refused or provided with a document that set forth the reason for that refusal; and because plaintiffs were provided with a document that said their visas were approved, the Court - for the purpose of a preliminary injunction only - construed the approval notices as issued visas.

Upon complete merits briefing and additional consideration of the FAM, the Court gives greater weight to Chapter 9 Section 504.11-2(A)(a) of the FAM, which provides that:

[A]ny alien to whom a visa is not issued by the end of the working day on which the application is made, or by the end of the next working day if it is normal post procedure to issue visas to some or all applicants the following day, must be found ineligible under one or more provisions of INA 212(a), 212(e), or 221(g). (INA 221(g) is not to be used when a provision of INA 212(a) is applicable.) This requirement to find an applicant ineligible when a visa is not issued applies even when: (1) (U) A case is medically deferred; (2) (U) The post requests an advisory opinion from the Department; (3) (U) The post decides to make additional local inquiries or conduct a full investigation; or (4) (U) The only deficiency is a clearance from another post.

When this section of the FAM is read in conjunction with Section 212(a) of the INA, 8 U.S.C. § 1182(a), which is cited in the FAM as a means through which an alien who was not issued a visa on the day of or day following their interview is ineligible for entry, it becomes clear that plaintiffs were not issued visas vis-à-vis the approval notices that they received. Specifically, Section 212(a)(I) of the INA provides that:

[A]ny immigrant at the time of application for admission - (I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title, or (II) whose visa has been issued without compliance with the provisions of section 1153 of this title, is inadmissible.

8 U.S.C. § 1182(a)(7)(A).

If plaintiffs were in fact approved for immigrant visas, the consular officer would have been required under the FAM to issue their visas on the day of their interviews, or the following day. Because they were not issued visas, the INA mandates that plaintiffs are necessarily inadmissible. There are no exceptions to these rules.

The binary responsibilities of the consular officers - that is, to issue or refuse a visa - remain important. But rather than focusing on the lack of clear refusal, as the Court did during the preliminary injunction phase to construe the approval notices as issued visas, the lack of clear approval - as evidenced by the consular officers' failure to issue each plaintiff a visa on the day of or day following their interview - compels the Court to conclude that plaintiffs were not issued visas when they received these approval notices. Plaintiffs were never given an official document with which they can be deemed admissible under the INA and permissibly enter the United States.

Even though there is a clear distinction between visa issuance and admissibility determinations under the INA, that fact does not change the outcome here. It is true that "even if a consular officer issues a visa, entry into the United States is not guaranteed." Trump v. Hawaii, --- U.S. ----, 138 S.Ct. 2392, 2414, 201 L.Ed.2d 775 (2018). Upon the alien's arrival in the United States, an immigration official can still determine that the alien is inadmissible under the INA, notwithstanding the fact that they have been issued an immigrant visa pursuant to the process described above. See id. Thus, the fact that plaintiffs could not have used the approval notices to gain admission into the country has some merit with respect to plaintiffs' argument that they still could have been issued a visa before they were refused pursuant to the Proclamation. But this argument is ultimately unpersuasive, because the approval notice could never have been used in lieu of a visa.

These notices cannot be construed as conveying official or authoritative approval. They simply do not have any legal meaning. The approval notice would at best constitute a "pending case," because the visa had not yet been issued. But as the FAM makes clear, "[t]here is no such thing as an informal refusal or a pending case once a formal application has been made." 9 FAM § 504.11-2(A)(b).

Although it appears that the consular officers in the Djibouti Embassy might not have adhered to their non-discretionary binary responsibilities, that does not mean plaintiffs must have been issued immigrant visas. Any failure by the consular officers to follow the FAM's binary directives cannot