19-1570-cv Alharbi v. Miller

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 17th day of November, two thousand twenty. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 MICHAEL H. PARK, 7 Circuit Judges, 8 JED S. RAKOFF,* 9 Judge. 10 ------------------------------------------------------------------ 11 AHMED ALHARBI, GAMEELAH 12 ALHARBI, RIYADH ALHARBI, 13 NIDAL ASSIEEBY, AHMAD 14 ALHARBI, YAHYA MURSHED, 15 GHADEER MURSHED, SAADIA 16 NASSER, TAHA THABIT, AISHA 17 THABIT, QASEM THABIT, 18 ABDULLAH MUGAMAL, EMAD 19 MUGAMAL, JEHAN AL NAJJAR,

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 1 DUAA MUGAMAL, MUSLEH 2 MUGAMAL, MOHAMED 3 MUGAMAL, HUSSAIN 4 MUGAMAL, SAMIA AL-NAMER, 5 SADAM MUGAMAL, YASMEEN 6 MUGAMAL, SALAH MUGAMAL, 7 NADIA SALEH, NOORIA 8 MUGAMAL, LAYAN MUGAMAL, 9 HUSSEIN ALI, LAILA ALI, 10 DHEYAZAN SAEED, SAIF SAEED, 11 RUQAIA ALDAFRI, RASHED AL 12 SHUGAA, ALI MUSSA, ISEAL 13 MUSA, ALTAZAM ALGAAD, 14 AHMED AL SAIDI, NUGOOD 15 AHMED, BASSAM ALMONTASER, 16 SALEH MURSHED, AISHA RAGIH, 17 HANAN NAGI, ALI HAMOOD, 18 MOHAMMED HUSAIN, YASEEN 19 HUSSEIN, ZAHR ALMULAIKI, 20 FADIL ALMULAIKI, KAID SALEH, 21 TAHANI ALI, MOHAMED TAHER, 22 YASSIN TAHER, ARWA QAHTAN, 23 REDAN QAHTAN, HIZAM 24 ALZOOKARI, LUTFIAH AL 25 GAMAL, GAMIL ASSEADY, 26 AHMED ASSAEDY, WEDAD ALI, 27 ABDULBASET RAGEH, KAMAL 28 SALIM, NASSER SALIM, ABDUH 29 AHMED ALQASSARI, EHTIRAM 30 YAHYA, ASHWAK MUKBIL, 31 TAHANI QASEM, AHLAM 32 MOHAMED, NESMAH ALI, 33 TAMNIA MURSHED, ABDULAZIZ 34 ALI, SABAH MURSHED, AISHA

2 1 ALI, RAWAIAH NASSER, BASMA 2 HADI, AHMED MOHAMED, 3 MOHAMED HADI, ALSAMAWI 4 MUTAHAR, SABAH MOHAMMED, 5 KAFA ALMUNTASER, GANA 6 HADI, RADWAN ALI, 7 MURTADHA SALEH, KAWTHER 8 HADI, SABAH MUTHANA, LAYLA 9 QASEM, AMANI SALEH, FERYAN 10 ALI, SULTAN AL WADI, FARES 11 AL-SHALH, RADWAN SALEH, 12 MARIAM MUTHANA, ALI 13 MURSHED, RIYADH ALI, FATIMA 14 ALI, ALFIAH KAID, ROUWAIDA 15 ALCHOUJAA, ASIA MATHAR, 16 EBRAHIM AL-SHALH, HASSAN 17 MURSHED, GAWAHER QASEM, 18 ALVA AHMED, ABEER JABAR, 19 SIHAAM AL-ROWHANI, SAMAH 20 MUTHANA, GHADEER AL- 21 HOWTHI, FARAH MOHAMED, 22 WASSEEM MOHAMED, 23 MOHAMED SALEH, MONTASER 24 ALI, SUMAIA ABDULRAHMAN, 25 HAFEDH OBAD, ENAS SALEH, 26 NOOR MUTHANA, SULTAN 27 OBAD, MONA OBAID, AMANI 28 SALEH, ERADAH ALZINADANI, 29 SUAD ABDULLAH MUTHANA, 30 DHEYAZAN QAID, SUAD YEHYA 31 MUTHANA, ABDUL HADI, AWAD 32 HADI, ENTIBAH MARCHED, 33 HADI MOHAMMED, QUANAF

3 1 JABAR, KAREM MOHAMED, ALI 2 SALEH, 3 4 Plaintiffs-Appellants, 5 6 v. No. 19-1570-cv 7 8 STEPHEN MILLER, SENIOR POLICY ADVISOR 9 FOR THE PRESIDENT, DONALD J. TRUMP, 10 PRESIDENT OF THE UNITED STATES OF 11 AMERICA, UNITED STATES OF AMERICA, 12 MICHAEL POMPEO, SECRETARY OF THE 13 UNITED STATES DEPARTMENT OF STATE, 14 UNITED STATES DEPARTMENT OF STATE, 15 UNITED STATES EMBASSY IN DJIBOUTI, 16 CHAD F. WOLF, ACTING SECRETARY OF 17 UNITED STATES DEPARTMENT OF 18 HOMELAND SECURITY, CHRISTOPHER 19 WRAY, DIRECTOR OF FEDERAL BUREAU OF 20 INVESTIGATION, FEDERAL BUREAU OF 21 INVESTIGATION, U.S. CUSTOMS AND 22 BORDER PROTECTION, WILLIAM P. BARR, 23 ATTORNEY GENERAL OF THE UNITED 24 STATES OF AMERICA, 25 26 Defendants-Appellees. 27 28 ------------------------------------------------------------------

4 1 FOR PLAINTIFFS-APPELLANTS: JULIE A. GOLDBERG, Goldberg 2 and Associates, Bronx, NY. 3 4 FOR DEFENDANTS-APPELLEES: JOSHUA S. PRESS, Trial 5 Attorney, Office of 6 Immigration Litigation 7 (Samuel P. Go, Assistant 8 Director, William C. Peachey, 9 Director, District Court 10 Section, Office of Immigration 11 Litigation, on the brief), for 12 Jeffrey B. Clark, Acting 13 Assistant Attorney General, 14 Civil Division, United States 15 Department of Justice, 16 Washington, DC (Joseph 17 Marutollo, Assistant United 18 States Attorney, on the brief, for 19 Richard P. Donoghue, United 20 States Attorney for the Eastern 21 District of New York, 22 Brooklyn, NY).

23 Appeal from a judgment of the United States District Court for the Eastern

24 District of New York (Brian M. Cogan, Judge).

25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

26 AND DECREED that the appeal is DISMISSED in part and the judgment of the

27 District Court is otherwise AFFIRMED.

5 1 The Plaintiffs-Appellants are Yemeni visa applicants and their sponsors.

2 They appeal from a judgment of the District Court (Cogan, J.) granting the

3 Government’s motion to dismiss their claims for an order compelling the

4 Government to adjudicate their visa applications and provide them with visas.

5 On appeal, the Plaintiffs-Appellants challenge only the District Court’s

6 conclusions with respect to their claims under the Mandamus Act, 28 U.S.C.

7 § 1361, the Administrative Procedure Act (APA),

et seq, and the

8 Due Process Clause of the Fifth Amendment. Because all of the Plaintiffs-

9 Appellants’ applications have been adjudicated, the Government now moves to

10 dismiss the appeal as moot. We assume the parties’ familiarity with the

11 underlying facts and prior proceedings, to which we refer only as necessary to

12 explain our decision to dismiss the appeal in part and affirm in part.

13 The Plaintiffs-Appellants seek an order that both compels adjudication of

14 their visa applications and requires the Government to actually issue the visas

15 for which they applied. It is undisputed that the vast majority of the Plaintiffs-

16 Appellants have now been issued visas. As to those individuals, we agree with

17 the Government that the appeal must be dismissed as moot. Knox v. Serv.

6 1 Emps. Int’l Union, Local 1000,

(2012) (“A case becomes moot . . .

2 when it is impossible for a court to grant any effectual relief whatever to the

3 prevailing party.” (quotation marks omitted)).

4 The dispute remains live, however, with respect to those twenty-one

5 Plaintiffs-Appellants whose visa applications have been refused, because they

6 continue to seek an order on the merits compelling the Government to issue visas

7 to them. The District Court dismissed the claims of the remaining Plaintiffs-

8 Appellants under the doctrine of consular nonreviewability. We agree. 1

9 Each Plaintiff-Appellant excluded from entry was excluded “on the basis

10 of a facially legitimate and bona fide reason,” and so our review can go no

11 further. Kleindienst v. Mandel,

(1972). Most of the excluded

12 Plaintiffs-Appellants were excluded on statutory substantive inadmissibility

13 grounds. See, e.g.,

(a)(6)(C)(i) (willful material

14 misrepresentation); § 1182(a)(6)(E) (smuggling).

1 To the extent that Appellants argue that the doctrine of consular nonreviewability does not apply to claims asserted under the APA, they forfeited the contention by failing to raise it in the proceedings before the District Court. See In re Nortel Networks Corp. Sec. Litig.,

(2d Cir. 2008).

7 1 Only two Plaintiffs-Appellants were ultimately excluded on the basis of

2 Presidential Proclamation 9645. They contend that they are exempt from

3 Proclamation 9645 because they were given “approval notices” before the

4 Proclamation took effect. The approval notices, they claim, constituted “issued

5 visas” that could not be revoked pursuant to Section 6(c) of the Proclamation.

6 We agree with the District Court, however, that the “approval notices” were not

7 “issued visas.” Therefore, we conclude that the refusals based on Proclamation

8 9645 were facially legitimate and bona fide.

9 We have considered the Plaintiffs-Appellants’ remaining arguments and

10 conclude that they are without merit. For the foregoing reasons, the appeal is

11 DISMISSED in part, and the judgment of the District Court is otherwise

12 AFFIRMED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court

8