Mohamed et al v. Pompeo et al
| Nassr A Mohamed, A.A., Mazen Abulqader Thabit Al-Areqi, Muhjah Abdoalnasar Mohammed Ahmed, G.A. and A.A(2) |
| Michael Pompeo, United States Embassy, Djibouti, U.S. Department of State, U.S. Department of Homeland Security, U.S. Department of Justice, Kevin McAleenan, William Barr, Devin Kennington and United States Department of Justice |
| 1:2019cv01345 |
| September 25, 2019 |
| US District Court for the Eastern District of California |
| Lawrence J O'Neill |
| Sheila K Oberto |
| Other Immigration Actions |
| 28 U.S.C. § 1361 |
| None |
Docket Report
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This docket was last retrieved on January 19, 2022. A more recent docket listing may be available from PACER.
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Filing 28
PRO HAC VICE ORDER Added attorney Eric Hisey, PHV for A.A(2), Eric Hisey, PHV for A.A.,Eric Hisey, PHV for Muhjah Abdoalnasar Mohammed Ahmed,Eric Hisey, PHV for Mazen Abulqader Thabit Al-Areqi,Eric Hisey, PHV for G.A.,Eric Hisey, PHV for Nassr A Mohamed, signed by Magistrate Judge Sheila K. Oberto on 10/2/2019. (Flores, E)
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Filing 29
PRO HAC VICE ORDER Added attorney Mehgan A. Gallagher, PHV for A.A(2),Mehgan A. Gallagher, PHV for A.A.,Mehgan A. Gallagher, PHV for Muhjah Abdoalnasar Mohammed Ahmed,Mehgan A. Gallagher, PHV for Mazen Abulqader Thabit Al-Areqi,Mehgan A. Gallagher, PHV for G.A.,Mehgan A. Gallagher, PHV for Nassr A Mohamed, signed by Magistrate Judge Sheila K. Oberto on 10/02/2019. (Flores, E)
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Filing 27
PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed for attorney Eric Hisey to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972-8494150) (Goldberg, Julie)
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Filing 26
PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed for attorney Mehgan A Gallagher to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972-8494136) (Goldberg, Julie)
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Filing 25
STATUS REPORT by William Barr, Devin Kennington, Kevin McAleenan. (Hemesath, Audrey)
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Filing 24
MINUTE ORDER: The Court is in receipt of Defendants' response #20 to the Court's order to show cause 19 and Plaintiffs' brief in support of sanctions #21 . The Court GRANTS retroactively Defendants' request for an extension until 4:00 p.m. PST on 9/29/19 to file the State Department declaration, which has been filed and reviewed by the Court as well #22 .The Court finds the Government has still failed to present legally sufficient adjudications of Plaintiffs' applications for diversity visas. As a threshold matter, the Court finds that Defendants' arguments of non-reviewability are tantamount to stating that whether the Court's Order is followed or not, the Court has no power or authority to enforce the Order itself. This is not the law. This Court also sees no statutory or regulatory basis for the State Department's reliance on its own internal guidance as a justification for failing to provide a direct basis for its denial of Plaintiffs' diversity visa applications by assuming those applications have been converted to different forms of visa applications. The Court finds Defendants in violation of this Court's order to adjudicate the diversity visa applications-- which are the subject of the Complaint in this case and therefore the subject of this Court's order. The purported denials provided, which fail to provide bases for denial of the diversity visa applications, are not legally compliant adjudications. Plaintiffs are entitled by statute and regulation to an explanation as to why their diversity visa applications have been denied. They have not received such an explanation. The State Department's Guidance does not directly excuse this procedural failure. As sanction for this conduct, the Court finds the Government has forfeited any argument that Plaintiffs are not entitled to the relief sought due to the expiration of the fiscal year on 9/30/2019. The Court further Orders the Government on or before 4:00 pm PST on September 30, 2019, to comply with its original order requiring the Government to forthwith decide and adjudicate this matter pursuant to proper procedure. Signed by Chief Judge Lawrence J. O'Neill on 9/29/2019.(Coffman, Lisa)
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Filing 23
REPLY by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed re #22 Declaration. (Goldberg, Julie)
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Filing 22
DECLARATION of Dybdahl re #20 Response to Order to Show Cause. (Hemesath, Audrey)
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Filing 21
MOTION to COMPEL by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed. (Attachments: #1 Declaration Declaration of Muhaj, #2 Declaration Declaration of Mazen)(Goldberg, Julie)
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Filing 20
RESPONSE to 19 ORDER to SHOW CAUSE by William Barr, Devin Kennington, Kevin McAleenan. (Hemesath, Audrey)
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Filing 19
MINUTE ORDER: The Court has received and reviewed the Status Report filed by Defendants earlier today #18 , to which are attached copies of visa denials for the applicant Plaintiffs [18-1]. The denials cite INA 212(a)(5)(A) (8 USC 1182(a)(5)(A)), which requires a labor certification for certain immigrants. This provision appears to be facially inapplicable to the visa applications at issue in this case. See 22 CFR 40.51(a) (INA 212(a)(5)(A) applies only to immigrant aliens described in INA 203(b)(2) or (3)); INA 203(b)(2) and (3) (8 USC 1153(b)(2),(3)) (applicable only to employment-based immigrants; not diversity lottery applicants). Diversity lottery applicants are covered by 8 USC 1153(c). 8 USC 1153(c)(2) establishes the work and education requirements for diversity immigrants. The Court is inclined to find that the bad faith exception to the doctrine of consular nonreviewability applies here in light of the facial inapplicability of the cited basis for the denials. See Yafai v. Pompeo, 912 F.3d 1018, 1022 (7th Cir. 2019) (discussing how Justice Kennedys concurrence in Kerry v. Din, U.S., 135 S.Ct. 2128, 2131 (2015), observes that an affirmative showing of bad faith that is plausibly alleged with sufficient particularity might justify review). Relatedly, the Court is also inclined to find that Defendants have failed deliberately to comply with this Courts September 27, 2019 order #13 to adjudicate conclusively the disputed visa applications. Therefore, Defendants are ordered to show cause in writing on or before noon pacific time tomorrow (Sunday, September 29, 2019) why Defendants should not be held in contempt and/or sanctioned for this apparent deliberate noncompliance. In addition to any legal authorities (which shall for clarity and to avoid any misunderstanding provide references to applicable, codified United States Code sections in addition to INA citations), Defendants shall include a declaration from an authorized state department official explaining how the basis offered for the denial applies to the type of visa applications in question. If the denial was in error and/or the visas may be granted, Defendants may so explain and rectify the situation. Plaintiffs may file a simultaneous brief providing legal support for any recommendations they may have as to appropriate sanctions. Signed by Chief Judge Lawrence J. O'Neill on 9/28/19. (Coffman, Lisa)
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Filing 18
STATUS REPORT by William Barr, Devin Kennington, Kevin McAleenan. (Attachments: #1 Exhibit Refusal Letters)(Hemesath, Audrey)
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Filing 17
STATUS REPORT by William Barr, Devin Kennington, Kevin McAleenan. (Hemesath, Audrey)
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Filing 16
MINUTE ORDER: The Court has reviewed the United States' motion for extension of time #14 and Plaintiffs' response #15 . The motion is GRANTED IN PART subject to the modifications and conditions suggested by Plaintiffs in their response. Specifically, the deadline to adjudicate the visas will be extended to 12 noon, SUNDAY, September 29, 2019, DJIBOUTI TIME, IF AND ONLY IF Defendants agree to instantaneously reserve the five (5) diversity visas required for Plaintiff Muhjah and her derivatives to immigrate to the United States. For this extension to take effect, the United States must accept the condition in writing by 6:00 am, TOMORROW (Saturday), PACIFIC TIME, September 28, 2019. Otherwise the original deadline stands. Signed by Chief Judge Lawrence J. O'Neill on 9/27/19. (Coffman, Lisa)
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Filing 15
REPLY by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed re #14 MOTION for 2-DAY EXTENSION OF TIME to Comply with Court Order re #13 Order on Motion for TRO. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B)(Goldberg, Julie)
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Filing 14
MOTION for 2-DAY EXTENSION OF TIME to Comply with Court Order re #13 Order on Motion for TRO by William Barr, Devin Kennington, Kevin McAleenan. (Hemesath, Audrey)
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Filing 13
MEMORANDUM DECISION AND ORDER RE PLAINTIFFS' MOTION FOR EMERGENCY WRIT OF MANDAMUS AND PRELIMINARY INJUNCTION signed by Chief Judge Lawrence J. O'Neill on September 27, 2019.(ECF No. 2) (Munoz, I)
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Filing 12
REPLY by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed to RESPONSE to #2 MOTION for TEMPORARY RESTRAINING ORDER. (Goldberg, Julie)
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Filing 11
OPPOSITION by William Barr, Devin Kennington, Kevin McAleenan to #2 MOTION for TEMPORARY RESTRAINING ORDER. (Hemesath, Audrey)
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Filing 10
EXHIBIT QQ by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed re #2 MOTION for TEMPORARY RESTRAINING ORDER. (Goldberg, Julie)
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Filing 9
MINUTES (Text Only) for proceedings before Chief Judge Lawrence J. O'Neill: IN COURT HEARING held on 9/26/2019. Plaintiffs Counsel Julie Goldberg present. Defendants Counsel Audrey Hemesath present. Court Reporter/CD Number: ECRO. (Munoz, I)
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Filing 8
MINUTE ORDER: (TEXT ENTRY ONLY) The Court issues this order by minute order because of the time constraints the parties are operating under. The Defendants are ordered to respond to the application for the writ of mandamus in writing no later than 2:30pm on 9/26/19 or alternatively may respond orally at a hearing before this Court at 3:30pm on 9/26/19. The parties may appear in person or telephonically, but the Court will hold the hearing at 3:30pm regardless of whether the Defendants submit a written response. Furthermore, if the Defendants file a written response, they are ordered to also e-mail the response to the Court and all parties signed by Chief Judge Lawrence J. O'Neill on September 25, 2019. (Munoz, I)
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Filing 7
DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Michael Pompeo, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, United States Embassy, Djibouti. (Hemesath, Audrey)
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Filing 6
DESIGNATION of COUNSEL FOR SERVICE. Added attorney Audrey Benison Hemesath for Michael Pompeo,Audrey Benison Hemesath for U.S. Department of Homeland Security,Audrey Benison Hemesath for U.S. Department of Justice,Audrey Benison Hemesath for U.S. Department of State,Audrey Benison Hemesath for United States Embassy, Djibouti (Hemesath, Audrey)
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Filing 5
CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 1/2/2020 at 09:45 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. (Attachments: #1 Standing Order, #2 Consent Form, #3 VDRP) (Marrujo, C)
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Filing 4
SUMMONS ISSUED as to *U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, United States Embassy, Djibouti* with answer to complaint due within *60* days. Attorney *Julie Ann Goldberg* *Goldberg & Associates* *5586 Broadway, Third Floor* *Bronx, NY 10463*. (Marrujo, C)
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Filing 3
SUMMONS ISSUED as to *William Barr, Devin Kennington, Kevin McAleenan, Michael Pompeo* with answer to complaint due within *60* days. Attorney *Julie Ann Goldberg* *Goldberg & Associates* *5586 Broadway, Third Floor* *Bronx, NY 10463*. (Marrujo, C)
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Filing 2
MOTION for TEMPORARY RESTRAINING ORDER by A.A(2), A.A., Muhjah Abdoalnasar Mohammed Ahmed, Mazen Abulqader Thabit Al-Areqi, G.A., Nassr A Mohamed. Motion Hearing set for 9/25/2019 at 02:00 PM before Chief Judge Lawrence J. O'Neill. (Attachments: #1 TRO Checklist, #2 Motion for TRO and Memorandum on Points and Authorities, #3 Declaration of Julie Goldberg regarding Notice to Parties, #4 Proposed Order, #5 Exhibit A, #6 Exhibit B, #7 Exhibit C, #8 Exhibit D, #9 Exhibit E, #10 Exhibit F, #11 Exhibit G, #12 Exhibit H, #13 Exhibit I, #14 Exhibit J, #15 Exhibit K, #16 Exhibit L, #17 Exhibit M, #18 Exhibit N, #19 Exhibit O, #20 Exhibit P, #21 Exhibit Q, #22 Exhibit R, #23 Exhibit S, #24 Exhibit T, #25 Exhibit U, #26 Exhibit V, #27 Exhibit W, #28 Exhibit X, #29 Exhibit Y, #30 Exhibit Z, #31 Exhibit AA, #32 Exhibit BB, #33 Exhibit CC, #34 Exhibit DD, #35 Exhibit EE, #36 Exhibit FF, #37 Exhibit GG, #38 Exhibit HH, #39 Exhibit II, #40 Exhibit JJ, #41 Exhibit KK, #42 Exhibit LL, #43 Exhibit MM, #44 Exhibit NN, #45 Exhibit OO, #46 Exhibit PP)(Goldberg, Julie)
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Filing 1
COMPLAINT against All Defendants by A.A(2), Muhjah Abdoalnasar Mohammed Ahmed, A.A., G.A., Nassr A Mohamed, Mazen Abulqader Thabit Al-Areqi. (Filing fee $ 400, receipt number 0972-8481012) (Attachments: #1 Civil Cover Sheet Civil Cover Sheet)(Goldberg, Julie)
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