Summary: Wagafe v. Trump, a Preview of ‘Extreme Vetting’ Litigation

The Ninth Circuit held on Dec. 22 that President Donald Trump’s latest executive order exceeded both his independent Article II authority and his statutory authority under the Immigration and Nationality Act (INA). (See Lawfare analysis of the opinion from Peter Margulies and Josh Blackman.) The Ninth Circuit stayed its decision pending Supreme Court review. This allows the administration’s travel restrictions to take partial effect, in accordance with prior Supreme Court and Ninth Circuit rulings that, while cases related to the order are pending, the government can block most citizens from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela from entering the United States if those individuals lack a “bona fide relationship with a person or entity in the United States.” Litigation over the executive order continues in multiple federal circuits.

But the administration’s critics aren’t just concerned with the executive order. Civil liberties organizations have also brought challenges (see Wagafe v. Trump, Brennan Center v. Department of State, and Knight First Amendment Institute v. Department of Homeland Security) regarding Trump’s promised “extreme vetting” of immigrants, possibly through an “ideological screening test” to exclude those who “support bigotry and hatred.” Some plaintiffs are seeking further information on how “extreme vetting” would change immigration protocols, while others are bringing challenges to existing federal programs that allegedly enact “extreme vetting.” The outcome of these cases will affect foreign nationals’ ability to be naturalized and remain in the United States, regardless of any later determination on the legality of the executive order.

The Western District of Washington granted class certification in one “extreme vetting” case, Wagafe v. Trump, in June 2017. The plaintiffs in Wagafe allege that an Obama-era federal program known as the Controlled Application Review and Resolution Program (CARRP) violates federal law, including the INA, the Administrative Procedure Act (APA) and the Constitution. CARRP is used to identify and adjudicate applications for immigrant benefits filed by individuals the program considers to be a “national security concern.” Immigration officers are allegedly guided to delay such applications for as long as possible, without informing the applicant or allowing him an opportunity to challenge the classification. The class plaintiffs in Wagafe seek injunctive and declaratory relief against CARRP and any “successor ‘extreme vetting’ program.”

Wagafe is the first challenge to CARRP that has survived the government’s efforts to moot lawsuits by resolving individual plaintiffs’ immigration applications. This post summarizes the background and most recent ruling in Wagafe, to preview the issues that may arise in challenges to “extreme vetting” programs.

Background

The Immigration and Naturalization Act (INA) and its implementing regulations outline requirements for naturalization. These include criteria related to age, continuous residency and good moral character. Congress has provided that an application for immigration benefits should be processed within 180 days of its initial filing. Federal regulations state that the U.S. Citizenship and Immigration Service (USCIS) shall grant an application if the applicant has complied with all requirements for naturalization, providing a decision within 120 days after the initial examination of the applicant.

The USCIS created CAARP in 2008, at the close of the Bush administration. The program continued under the Obama administration, but was unknown to the public until it was discovered during a 2012 case challenging a denial of naturalization. USCIS has reportedly applied CARRP to over 41,000 immigration applications since 2008.

The INA already makes inadmissible or removable for national security reasons individuals who have engaged in terrorist activity or are members of terrorist organizations. The Wagafe plaintiffs claim CARRP exceeds this statutory mandate by labeling applicants a “national security concern” if they appear to have any “articulable link—no matter how attenuated or unsubstantiated”—to terrorist activities or entities. CARRP’s alleged “non-statutory indicators” include “travel through or residence in known areas of terrorist activity, a large scale transfer or receipt of funds, [or] a person’s employment, training, or government affiliations.” The plaintiffs claim that “because the Constitution expressly assigns the authority to establish uniform rules of naturalization to Congress—which Congress has done in the Immigration and Naturalization Act—the USCIS, as part of the executive branch, has created an extra-statutory, unlawful, and unconstitutional program in CARRP.”

Immigrants previously brought similar challenges to CARRP in 2014 (Muhanna v. USCIS) and 2016 (Arapi v. USCIS). In both cases, plaintiffs who had waited years for adjudication saw their applications acted upon soon after filing suit. The district courts in each case dismissed the suits as moot, allowing CAARP to evade judicial review.

The Wagafe plaintiffs filed suit on Jan. 23, 2017, at first challenging only CARRP. The plaintiffs amended their complaint following Trump’s issuance of Executive Order 13769 (“Protecting the Nation from Foreign Terrorist Entry into the United States”) on Jan. 27, 2017. USCIS initially determined that EO 13769 required the agency to suspend actions on almost all pending applications from citizens of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya. The plaintiffs alleged that USCIS relied on the order to unlawfully suspend processing of immigration benefits. The plaintiffs also alleged that section 4 of the order directed federal agencies to create “a policy of extreme vetting” that “would expand CARRP.” Section 4 of the executive order called on federal officials to “implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the [United States]” who intend or are at risk of causing harm. When Trump announced a new executive order (EO 13780) in March 2017, the plaintiffs amended their complaint accordingly.

Parties

The plaintiffs in Wagafe are all foreign nationals from Muslim-majority countries who have applied for naturalization or other immigration benefits. The lead named plaintiff Abdigafar Wagafe is a Somali national who was formerly a lawful permanent resident. Having met the statutory criteria, Wagafe applied for naturalization in November 2013. Wagafe’s application was submitted to CARRP and no further action was taken on it until February 2017, when he and other plaintiffs moved for class certification. Soon after the plaintiffs signalled their impending action, Wagafe was contacted by USCIS and became a U.S. citizen in two weeks.

The remaining four plaintiffs are foreign nationals from Iran, Libya, Iraq and Pakistan. Each plaintiff experienced substantial delay in application processing but received a final decision from USCIS soon after being added as a plaintiff in Wagafe.

The defendants in Wagafe are Trump in his official capacity, USCIS, Secretary of Homeland Security John Kelly in his official capacity and three USCIS directors in their official capacities.

Claims

The plaintiffs’ second amended complaint, filed April 4, 2017, alleged violations of the INA, APA, establishment clause, equal protection clause, due process clause and uniform rule of naturalization clause.

The plaintiffs requested that the court certify the case as a class action; order the defendants to adjudicate the proposed class members’ applications; declare certain sections of Executive Order 13780 contrary to the Constitution and INA; enjoin the defendants from applying certain sections of Executive Order 13780 to the proposed class; declare CARRP and any successor “extreme vetting” program in violation of the Constitution, the INA, and the APA; and (1) enjoin the defendants from applying CARRP to the proposed class, (2) order defendants to rescind CARRP, or (3) order the defendants to provide the proposed class with notice, reasons, and an opportunity to be heard regarding their classification under CARRP.

June 2017 Order

Judge Richard A. Jones of the United States District Court for the Western District of Washington issued an order in Wagafe on June 21, 2017. The order granted in part, and denied in part, the government’s motion to dismiss and granted the plaintiffs’ motion for class certification.

• Defendants’ Motion to Dismiss

The government argued that the court lacked subject matter jurisdiction because the plaintiffs’ individual immigration cases had been adjudicated, such that the plaintiffs did not have standing and the plaintiffs’ claims were moot. Jones rejected this argument, noting that USCIS had acted on each of the named’ plaintiff’s applications “almost immediately after the plaintiffs were added as proposed class representatives.” The court wrote that a “defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” and concluded that the government had not met the “heavy burden” of persuading the court that the challenged conduct—the use of CARRP—would not resume.

Jones agreed with the government that “any claims about enjoining a potential future extreme vetting program may be premature.” He noted, however, that the complaint only mentioned extreme vetting as a successor program to CARRP. If the court ultimately enjoined CARRP and the government implemented a substantially similar successor program, the court explained, such an action would indeed violate the court’s injunction.

On the plaintiffs’ asserted due process violation, the government argued that the foreign nationals had no protected property interest in the adjudication of their applications. The court found that applicants for naturalization did have a property interest, while applicants for another adjustment of status did not. The court thus dismissed the due process claims as they related to the class of individuals seeking adjustment of immigration status.

The court also denied motions by the government claiming that plaintiffs lacked standing to sue for a violation of the uniform naturalization clause; that the INA did not create a private right of action; that CARRP is not a final agency action; and that CARRP is not a substantive or legislative rule subject to notice-and-comment procedures.

• Plaintiff’s Motion for Class Certification

The plaintiffs moved for certification of the following class, which the court referred to as the “Naturalization Class”:

A national class of all persons currently and in the future (1) who have or will have an application for naturalization pending before USCIS, and (2) that is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.

And the following class, which the court referred to as the “Adjustment Class”:

A national class of all persons currently and in the future (1) who have or will have an application for adjustment of status pending before USCIS, (2) that is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.

The government contested class certification on Rule 23(a) adequacy grounds, arguing in part that the named plaintiffs were inadequate representatives because each of their applications had been adjudicated. The court responded that this argument “actually persuades the Court that class certification is appropriate.” Noting that the government had acted on the named plaintiffs’ applications immediately after they joined the lawsuit, Jones said:

[I]f adjudication of Plaintiffs’ applications is not happenstance, and Defendants are purposely and strategically adjudicating Plaintiffs’ applications as they are added as named Plaintiffs, such a blatant attempt to moot Plaintiffs’ claims will not gain purchase with this Court. If this is true, Defendants appear to be engaging in a strategy of picking off named Plaintiffs to insulate CARRP from meaningful judicial review.

Jones cited Muhanna and Arapi, explaining that the government’s previous efforts to moot cases challenging CARRP weighed in favor of granting class certification. Noting the Constitution’s provision of a “uniform Rule of Naturalization,” the court certified a nationwide class in accordance with the plaintiffs’ proposed definitions.

Implications

Jones continues to consider pretrial motions in Wagafe, ruling on Nov. 28 that the government must provide information explaining why the named plaintiffs were subjected to CARRP. Because Wagafe is the first case of its kind to proceed to discovery, it may produce documents and court rulings that can shape challenges to any new immigration vetting procedures initiated by the Trump administration. Regardless of the fate of Trump’s travel ban, CARRP and its related programs could succeed in obstructing the immigration of significant numbers of foreign nationals.