Immigration – Court refuses to dismiss suit over Presidential immigration proclamation

Where plaintiffs alleged that Presidential Proclamation 10949, which forbids the entry of Afghan nationals into the United States, violates the Fifth Amendment and Administrative Procedure Act when applied to prevent the completion of the application process of their spouses’ and children’s already approved asylum applications, the defendants’ motion to dismiss was denied.

Background

Plaintiffs, all native citizens of Afghanistan, and each with one person granted asylum status in the United States, filed this action claiming that the Presidential Proclamation 10949, which forbids the entry of Afghan nationals into the United States, violates the Fifth Amendment and Administrative Procedure Act, or APA, when applied to prevent the completion of the application process of their spouses’ and children’s already approved asylum applications. Defendants have filed a motion to dismiss.

Standing

Defendants argue that plaintiffs lack Article III standing. The court disagrees. Concrete injuries include harms such as “a person’s interest in being united with his relatives,” can also constitute an injury for standing purposes.

Defendants next contend that because they are foreign nationals with no independent right to enter the U.S. or be issued a boarding foil, they have not suffered a cognizable “injury in fact.” But this conflates the jurisdictional question of standing with a merits determination.

The complaint alleges that the derivative plaintiffs have suffered various tangible and intangible harms, including the risk of “torture, degrading and inhumane treatment, or even death”; the “time, costs, and risks to attend an entirely futile interview”; harm to their “Fifth Amendment rights to due process” and the denial of “family reunification,” Such harms are “sufficient for standing under Article III.”

Likewise, the principal plaintiffs in the United States have alleged their own injuries arising out of their separation from their immediate family members that remain in Afghanistan, as well as third-party standing given their “close relationship” with the derivative plaintiffs, their spouses or children, that face a “hindrance” in protecting their own interests due to their inability in travelling to the U.S.

Discretion

Defendants argue that the court lacks jurisdiction to review plaintiff’s claims because they are “committed to agency discretion by law.” The court disagrees. Although the Executive branch’s authority on immigration matters necessarily allows consular officers to make certain discretionary decisions concerning immigration, the complaint alleges facts that make plausible plaintiffs’ claim that no individualized determination was ever made concerning the denial of the derivative plaintiffs’ boarding foils.

The State Department’s own guidelines acknowledge the limited discretion consular officers have in approving boarding foils and provide meaningful standards for judicial review. For these reasons, plaintiffs have “identified specific statutory standards against which to judge the Government’s action underlying [their] claim, and [their] challenge is to a broad agency enforcement policy rather than to an individual decision.”

Plausibility

Defendants contend that (1) the derivative plaintiffs do not meet the asylum exception in the Presidential Proclamations; (2) the doctrine of consular non-reviewability precludes this court from granting relief; (3) plaintiffs have no cognizable liberty interest under the Constitution and (4) the Presidential Proclamations 10949 and 10998 are not void for vagueness.

First, irrespective of whether derivative plaintiffs have been “granted asylum,” which the court need not decide for the purposes of its decision here, the derivative plaintiffs are clearly “seek[ing] asylum” such that they are excepted from the reach of the Presidential Proclamations. Second, the doctrine of consular non-reviewability does not apply to the facts of this case because plaintiffs are not challenging any discretionary and individualized decisions made by consular officials, but rather are opposing their application of the Proclamations’ categorical ban.

Third, although plaintiffs do not have a constitutional right to asylum, they “do have a due process interest in the procedures by which their asylum claims are adjudicated.” Fourth, Presidential Proclamation 10949 does not provide any guidance with respect to its application to following-to-join asylees such as the derivative plaintiffs who have had their I-730 petitions approved and are in the process of “seeking asylum.”

Transfer

None of the factors under 28 U.S.C. § 1404(a) supports the transfer of this case to Maryland. First, that three of the seven principal plaintiffs live in this judicial district weighs in favor of keeping the case in their home forum. Witness convenience similarly weighs against transfer; the State Department personnel that know most about the status of plaintiffs’ applications are clearly located outside the country and “not at USCIS headquarters in Maryland.” And because the two divisions are less than 30 miles apart, “none of the parties can claim any significant inconvenience” from a case tried at any particular federal courthouse in the greater DC metropolitan area.

Defendants’ motion to dismiss or transfer denied.

AA v. United States Department of State, Case No. 1:25-cv-01819, May 28, 2026. EDVA at Alexandria (Trenga). VLW 026-3-231. 20 pp.

Full-Text Opinion
VLW 026-3-231