Babamuradova v. Blinken

633 F.Supp.3d 1

Nafisa BABAMURADOVA, et al., Plaintiffs v. Antony J. BLINKEN, et al., Defendants.

Zulfiya Khamidova, et al., Plaintiffs v. Antony J. Blinken, et al., Defendants.

Leonid Fatikov, et al., Plaintiffs v. Antony J. Blinken, et al., Defendants.

Civil Action No. 22-1460 (JDB)

Civil Action No. 22-1990 (JDB)

Civil Action No. 22-2428 (JDB)

United States District Court, District of Columbia

Signed September 27, 2022

Curtis Lee Morrison, Morrison Urena L.C., San Diego, CA, for Plaintiffs.

Kartik Narayan Venguswamy, DOJUSAO, Washington, DC, Joseph F. Carilli, Jr., Washington, DC, for Defendants Antony Blinken, Morgan D. Miles, Edward J. Ramotowski.

Matthew J. Troy, U.S. Attorney's Office for the District of Columbia, Washington, DC, Joseph F. Carilli, Jr., Washington, DC, for Defendants Antony Blinken, Morgan D. Miles.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiffs Nafisa Babamuradova, Zulfiya Khamidova, and Leonid Fatikov, along with their derivative family members, were selected to apply for a diversity visa in fiscal year ("FY") 2022. Although they were selected to submit an application and did so in a timely manner, plaintiffs have not received an interview from the State Department, which is required to be considered for a diversity visa. In September 2022, each plaintiff filed a motion for temporary restraining order ("TRO") seeking to compel the State Department to schedule a visa interview before the September 30, 2022 end of fiscal year. For the reasons set forth below, the Court will deny plaintiffs' motions.

Background

I. Diversity Visa Program

Each fiscal year, the State Department allows citizens of certain underrepresented countries to submit an entry to the Diversity Visa program. Diversity visas are made available under the Immigration and Nationality Act ("INA") to promote immigration from countries that historically have had lower rates of immigration to the United States. See 8 U.S.C. § 1153(c)(1). Congress has capped the annual number of diversity visas at 55,000. Id. § 1151(a)(3), (e). A number of those are reserved for use under a separate program (established by the Nicaraguan and Central American Relief Act), so the State Department estimates that only 54,850 diversity visas will actually be available this year. See Aug. 2021 Visa Bulletin [Babamuradova ECF No. 13-5] at 9.

The number of entries or applicants vastly exceeds the number of spots available. Of the millions of entries, the Kentucky Consular Center ("KCC") selects fewer than 150,000 applications each fiscal year and offers those people an opportunity to apply for a diversity visa. See Aug. 2021 Visa Bulletin at 9 (noting that in FY 2022 "[a]pproximately 119,021 applicants" out of over seven million entries were selected). KCC holds selected applicants' cases "until those selected are entitled to make a formal application for a visa at a U.S. consular office abroad." 9 Foreign Affs. Manual ("FAM") § 502.6-4(c)(1)(b). An applicant's selection by KCC does not guarantee that they will receive a visa, only that they will be given an opportunity to apply for one. See P.K. v. Tillerson, 302 F. Supp. 3d 1, 3 (D.D.C. 2017).

KCC selects applicants using a random number system which generates "rank order number[s]" broken down into six geographic regions. See 9 FAM § 502.6-4(c)(2)(a)-(b). "Within each region, the first entry randomly selected will have a rank order number 00000001, the second entry selected will be 00000002, etc." Id. § 502.6-4(c)(2)(b).

Applicants who are selected by KCC "will be instructed to complete Form DS-260, Online Application for Immigrant Visa and Alien Registration." 9 FAM § 502.6-4(d)(1)(a). Once applicants have submitted a DS-260, then "[o]rdinarily . . . the case will be 'documentarily qualified' for purposes of visa appointment scheduling." Id. § 502.6-4(d)(1)(b). Prior to December 2021, applicants needed to have submitted the DS-260 and supporting documentation. See id. § 502.6-4(d)(1)(b). However, updated guidance issued in December 2021 now provides that "DV-2022 selectees no longer must submit to the KCC any other required supporting documents for DV-2022 in order to be eligible to be scheduled for an in-person interview at an embassy or consulate." Diversity Visa 2022 Update [Babamuradova ECF No. 13-2] ("Dec. 9, 2021 Guidance") at 1. Instead, applicants now must bring supporting documentation to their interviews. Id. Under either documentation policy, the fact than an applicant is "documentarily qualified" does not alone make him or her eligible to schedule an interview: the applicant's regional lottery rank number must also be "within the applicable rank cut-off for that month." 9 FAM § 502.6-4(c)(2)(c).

Under a prior version of the FAM guidelines, KCC would "schedule an appointment for a 'documentarily qualified' applicant when their regional lottery rank number is about to become current." Archived Version of 9 FAM § 502.6 [Babamuradova ECF No. 13-3] ("Former FAM Guidelines") at 12. The current version of the guidelines, implemented in mid-February 2022, states that KCC will "schedule an appointment for applicants that have completed processing at KCC around the time their regional program rank number is current." 9 FAM § 502.6-4(d)(2).

As the government describes it in a series of declarations, when an applicant's documents have been submitted and KCC has completed processing them, the case is "reported to the Visa Office," which "allocates a visa number," which then makes the case eligible to be scheduled. Decl. of Brenda Grewe [Babamuradova ECF No. 16-4] ("Babamuradova Grewe Decl. III") ¶ 2. At this point, the Office deems them at the "AV" stage and puts them in the "AV queue." Id. "When a post provides or updates its capacity and schedule for DV interview to KCC, KCC inputs the capacity and schedule by post into [the Diversity Visa Information System ("DVIS")], which then fills those appointments with cases with consideration of the full case number (i.e., regional rank order) and the date those cases moved into AV status." Id. Hence, the schedule for interviews is not solely dependent on the regional rank order assigned to an applicant. Within each region, there are a number of posts, each with their own schedule and capacity. An applicant with a lower regional rank number could nonetheless be scheduled for an interview after a higher-numbered applicant if, say, the processing of their documents was completed later (either due to the applicant's delay or issues with the documents submitted) or if the post to which they are assigned has more applicants or schedules interviews more slowly than a different post (even one within the same region). See Decl. of Morgan Miles [Khamidova ECF No. 11-2] ("Khamidova Miles Decl.") ¶¶ 9-10 (describing the scheduling process).

There are many reasons why an applicant who was initially selected to apply for a diversity visa may ultimately not receive one. Selectees are eligible to receive a visa only during the fiscal year in which they were selected to apply—"consular officers may not issue diversity visas after midnight on September 30" of the relevant fiscal year. Almaqrami v. Pompeo, 933 F.3d 774, 777 (D.C. Cir. 2019). Further, as described above, the number of diversity visas is statutorily capped at 55,000, but far more applicants are selected to apply than there are spots. The State Department could run out of time or spots, or it could determine that an individual applicant does not qualify under immigration laws. Cf. 9 FAM § 502.6-4(d)(1)(b) ("KCC will . . . flag for consular officers any apparent inconsistencies or potential fraud indicators."). Regardless of the reason, when September 30 comes around, any selectees who have not yet received a visa are out of luck. See Shahi v. U.S. Dep't of State, 33 F.4th 927, 928 (7th Cir. 2022) ("This fiscal-year limit has caused many an application to fail, because it means that bureaucratic inertia or foul-ups have the same effect as affirmative decisions that applicants are ineligible.").

If, however, an applicant is interviewed and otherwise meets the criteria to obtain a diversity visa, then the State Department "shall" issue the visa to the applicant. See Almaqrami, 933 F.3d at 777 (quoting 8 U.S.C. § 1153(c)).

Consulate offices (referred to as "posts") are responsible for processing a wide range of immigrant and nonimmigrant visas. During the COVID-19 pandemic, the State Department issued mandatory guidance to consulates regarding the prioritization of consular services during the pandemic. This guidance was replaced in November 2021 with a new policy, reflected in the cable 21 STATE 115378, which "rescinds mandatory prioritization guidance." Recalibration Cable [Babamuradova ECF No. 13-6] at 1. Under the November 2021 policy, "[c]onsular chiefs should determine the priority order of consular services processed at post." Id. For much of FY 2022, then, consulates had greater flexibility in prioritizing visa applications than they previously had during much of the pandemic.

II. Plaintiffs' Applications

There are three sets of plaintiffs in these coordinated cases. Each plaintiff was selected in the FY 2022 diversity visa lottery and therefore given an opportunity to apply for a visa. Each has submitted the required forms to KCC (either a DS-260 after December 21, 2021, or a DS-260 and required supporting documentation before December 9, 2021, see Khamidova Miles Decl. ¶ 9), and KCC has completed processing for each of their cases, see id. ¶ 17; Decl. of Morgan Miles [Babamuradova ECF No. 16-1] ("Babamuradova Miles Decl.") ¶¶ 8, 14.

Plaintiff Babamuradova and her derivatives' designated processing post is the U.S. Embassy in Tashkent. Babamuradova Miles Decl. ¶ 7. As of September 5, KCC had scheduled interviews for 935 FY 2022 diversity visa cases at the U.S. Embassy in Tashkent. Id. ¶ 9. At that time, there were also 618 cases assigned to the U.S. Embassy in Tashkent that were ready...