Aminjavaheri v. Biden

SAYEDMOHAMMADREZA AMINJAVAHERI, et al., Plaintiffs, v. JOSEPH R. BIDEN, JR, in his official capacity as President of the United States of America, et al., Defendants.

No. 1:21-cv-2246-RCL

United States District Court, District of Columbia

September 27, 2021

MEMORANDUM OPINION

ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE.

Plaintiffs in this case are selectees from the diversity visa lottery for the 2021 fiscal year. By statute, their eligibility to receive a diversity visa will expire on September 30, 2021. But their applications for a diversity visa have not yet been adjudicated. So on July 2, 2021, plaintiffs filed the present lawsuit in the Northern District Of Illinois, hoping to secure their visas by the deadline or otherwise preserve their eligibility. ECF No. 1. In their complaint, plaintiffs accuse defendants-federal government entities who administer the diversity visa program-of unlawfully suspending diversity visa processing for part of the fiscal year and implementing COVID-19 guidance that unlawfully deprioritizes diversity visa adjudications. See ECF No. 1. On July 12, 2021 plaintiffs moved for a temporary restraining order or preliminary injunction. ECF No. 7.

On August 23, 2021, the U.S. District Court for the Northern District of Illinois granted the government's motion to change venue and transferred this case to this district. ECF Nos. 22, 23, 24. The case was subsequently assigned to this Court. After the parties completed briefing on the plaintiffs' request for injunctive relief, the Court held a hearing on the present motion on September 22, 2021. 9/22/2021 Min. Entry. Upon consideration of the parties' filings, ECF Nos. 7, 7-1, 35, 37, 44, the arguments set forth at the hearing, the relevant legal authorities, and the record as a whole, the Court will DENY plaintiffs' motion for a temporary restraining order or a preliminary injunction.

I. BACKGROUND

A. The Diversity Visa Program

A diversity visa is a type of immigrant visa under the Immigration and Nationality Act ("TNA"). Each fiscal year, Congress reserves 55, 000 diversity visas for randomly selected individuals from countries that are historically underrepresented in the United States' immigration process. See 8 U.S.C. § 1151(e) id. § 1153(c)(1). Millions enter a lottery for the chance to apply for one of the allocated visas. See Gjoci v. Dep't of State, No. 21-cv-294 (RCL), 2021 WL 3912143, at *2 (D.D.C. Sept. 1, 2021).

The winners of this lottery, or "selectees," submit required documentation to the Kentucky Consular Center ("KCC") to become eligible for a visa number, a device used by the State Department to ensure that it does not exceed the allocated number of visas. 22 C.F.R. §§ 42.33(f)-(g), 42.51-.55; 9 Foreign Affairs Manual ("FAM") 502.6-4(c)(2)(C), (d). The INA mandates that visa numbers are issued to diversity visa applicants "strictly in a random order." 8 U.S.C. § 1153(e)(2); see 22 C.F.R. § 42.54(2). So after receiving and reviewing all supporting documentation, and deeming the applicant "documentarily qualified," the KCC allocates visa numbers to selectees "who are within the applicable rank cut-off for that month." 9 FAM 502.6-4(c)(2)(C). A selectee is only eligible to receive a visa number during the fiscal year for which the selectee applied. 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f).

The KCC contacts documentarily qualified applicants to schedule an interview at their local consular office when the applicant's visa number is about to become "current" under the State Department Visa Bulletin. See, e.g., 9 FAM 502.6-4(d)(2); 8 U.S.C. § 1202(b) ("All immigrant visa applications shall be reviewed and adjudicated by a consular officer."). A visa interview is scheduled only if the visa number for the applicant's country, region, and rank order is current per the information in the Visa Bulletin. 9 FAM 502.6-4(d)(2); see Gjoci, 2021 WL 3912143, at *2. And the availability of interview appointments may depend on the available resources and competing demands of the local consulate assigned to the selectee's case. See, e.g., ECF No. 35-1 at 2; ECF No. 35-3 at 2; ECF No. 35-4 at 2-3; Gjoci, 2021 WL 3912143, at *2. This is because, "[u]nless otherwise directed by the Department, an alien applying for an immigrant visa shall make application at the consular office having jurisdiction over the alien's place of residence." 22 C.F.R. § 42.61(a). Selectees are then scheduled for interviews by order of their rank number. ECF No. 35-2 at 4. After the interview, if the selectee meets the criteria to obtain one, the State Department shall issue him a diversity visa. See 8 U.S.C. § 1202(h); 22 C.F.R. § 42.81(a).

Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 3 Oof the selection fiscal year. 8U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1), (d); see 31 U.S.C. § 1102. Thus, "[i]f the selectee does not receive a visa by the end of the fiscal year ... he is out of luck." Gomez v. Trump, 485 F.Supp.3d 145, 159 (D.D.C. 2020).^[1]

For the 2021 fiscal year, 71, 817 people were selected in the diversity visa lottery, accounting for a total 137, 969 diversity visa applicants (including selectees' spouses and children) seeking one of 55, 000 allocated visas. See ECF No. 35-2 at 3. B. Diversity Visa Processing During The COVID-19 Pandemic

In March 2020, the State Department suspended routine visa services at all U.S. Embassies and Consulates due to COVID-19 and limited posts' operations to "emergency and mission critical visa services." Gomez, 485 F.Supp.3d at 160; see ECF No. 35-1 at 7.^[2] Diversity visa processing was excluded from these definitions. See, e.g., ECF No. 35-1 at 2, 7-8.

On April 22, 2020, then-President Trump signed Presidential Proclamation 10014, which temporarily suspended the entry of immigrants into the United States pursuant to 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a). 85 Fed. Reg. 23, 441 (April 22, 2020). This suspension was subsequently extended through March 31, 2021, by Presidential Proclamation 10052, 85 Fed. Reg. 38, 263, 38, 263-67 (June 25, 2020), and Presidential Proclamation 10131, 86 Fed. Reg. 417 (Dec. 31, 2020). The suspension was subject to certain enumerated exceptions, including that "any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees" remained eligible to seek entry. 85 Fed. Reg. at 23, 443 § 2(b)(ix). But there was no specific exception available for diversity visa applicants. Gomez, 485 F.Supp.3d at 162.

The State Department interpreted the Proclamations to suspend not only entry but also the issuance of visas not subject to one of Proclamations' enumerated exceptions. See Id. at 162-63 (discussing the State Department's interpretation). Accordingly, the State Department instructed consular posts that "only visa applicants that the post believes may meet an exception to the Proclamation, including the national interest exception, and that constitute a mission-critical category should be adjudicated at this time." Gjoci, 2021 WL 3912143, at *3 (alterations in original omitted).

In July 2020, the State Department began a phased resumption of routine visa services under its Diplomacy Strong Framework (or "Diplomacy Strong"). ECF No. 35-1 at 13. Under Diplomacy Strong, diversity visas were not eligible for processing until a post's conditions fell within the framework's final phase-and even then, diversity visas could not be processed unless the applicant's case was covered by an exception to Proclamation 10014. ECF No. 35-1 at 16.

In November 2020, the State Department issued "updated prioritization guidance" to consular offices to inform decision-making in the resumption of routine services. ECF No. 35-1 at 3; see Id. at 22. This guidance explains that "[although the Diplomacy Strong framework provides important context and structure, posts are no longer obligated to be in a specific Diplomacy Strong phase to adjudicate a particular visa class as described in prior guidance." Id. at 22. Instead, the updated guidance adopts a four-tier approach:

Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)

Tier Two: Immediate relative visas; fiance(e) visas; and returning resident visas

Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad

Tier Four: All other immigrant visas, including employment preference and diversity visas.

Id. at 23; see U.S. Dep't of State, Immigrant Visa Prioritization (last updated Sept. 13, 2021), https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-prioritization.html. While they were to adhere to this tiered system, posts were instructed that "some appointments [should be] made available in each tier, each month." ECF No. 35-1 at 23.^[3]

On February 19, 2021, defendants issued new prioritization guidance in anticipation of the expiration of Proclamation 10014. ECF No. 35-1 at 3, 33. Consulates were instructed to begin scheduling diversity visa cases for the fiscal year starting in April 2021. Id. at 33. While the February 2021 guidance incorporated the November 2020 guidance's tiered prioritization approach, posts were also instructed that:

[p]osts with an [Immediate Relative ("IR")] backlog should still schedule some Family Preference (FP) cases, Employment Preference (EP), and Diversity Visa (DV) cases each month considering the backlog, if any, for

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