Kassem v. Blinken, 1:21-cv-01400-DAD-HBK

RAIDAN KASSEM, et al., Plaintiffs, v. ANTONY J. BLINKEN, et al., Defendants.

No. 1:21-cv-01400-DAD-HBK

United States District Court, E.D. California

September 24, 2021

ORDER GRANTING PRELIMINARY INJUNCTION (DOC. NOS. 1 2)

On September 20, 2021, plaintiffs Raidan Kassem (“Raidan”), Osamah Abdulhameed Muthana Nasser (“Osamah”), Raina Mohamed Abdulaim (“Raina”), and plaintiffs Osamah's and Rania's two minor children, R.O.A.M.N. and R.O A.M.N (2), (“Minor Plaintiffs”), filed this action against defendants Antony J. Blinken, Merrick B. Garland Alejandro Mayorkas, U.S. Department of State, U.S. Department of Homeland Security, U.S. Department of Justice, Kentucky Consular Center, Jonathan Goodale Pratt, and United States Embassy, Djibouti. (Doc. No. 1 (“Compl.”).) On the same day, plaintiffs filed an ex parte motion for an emergency preliminary injunction. (Doc. No. 2-2.) On September 22, 2021, the government filed an opposition to the pending motion, and plaintiffs filed a reply thereto on September 23, 2021. (Doc. Nos. 8, 9.) Pursuant to General Order No. 617 addressing the public health emergency posed by the coronavirus pandemic, the court takes this matter under submission to be decided on the papers, without holding a hearing. For the reasons explained below, the court will grant plaintiffs' motion for preliminary injunction.

BACKGROUND

Plaintiff Raidan is a U.S. citizen who resides in Bakersfield California. (Doc. No. 9 at 4-5.) Plaintiffs Osamah, Raina, and the Minor Plaintiffs are Yemeni nationals (collectively, “Yemeni Plaintiffs”), who presently reside in Yemen. (Compl. at ¶¶ 10-13.)

On June 6, 2020, plaintiff Osamah won the diversity visa lottery for the 2020 application cycle, which is a program to facilitate the immigration of eligible individuals from countries with historically low rates of immigration to the United States. (Id. at ¶ 10); see 8 U.S.C. § 1153(c) (“Diversity Visa Program”); see also Iddir v. I.N.S., 301 F.3d 492, 494-95 (7th Cir. 2002) (reviewing, generally, operation of Diversity Visa Program); Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Servs., 338 F.Supp.2d 399, 400-02 (E.D.N.Y. 2004) (same). Plaintiff Osamah alleges that he completed his diversity visa application, as did plaintiff Raina and the Minor Plaintiffs as derivative applicants of plaintiff Osamah's application. (Compl. at ¶¶ 10-13, 36.)

Plaintiff Raidan alleges that he incorporated a corporation on February 23, 2021 in reliance on plaintiff Osamah's “selection documentary qualification confirmation, ” that he intends to hire plaintiff Osamah through the corporation, and that he has invested thousands of dollars in immigration fees, as well as research and attorneys' fees, in reliance upon plaintiff Osamah's visa being approved following the procedures set out in federal law, regulation, and agency guidance. (Doc. Nos. 2-2 at 7; 2-4 at 212.)

The Yemeni plaintiffs allege that they have completed all requirements to obtain the diversity visas, but that they have not been scheduled for consular visa interviews. (Compl. at ¶¶ 41-49.) Under the diversity visa program, if a visa is not issued by the end of the fiscal year in which an individual applies, here September 30, 2021, the applicants permanently lose their lottery slot. See 8 U.S.C. § 1154(a)(1)(I)(ii)(II).

Plaintiffs' complaint asserts four substantive causes of action. The first arises under the Administrative Procedure Act (“APA”), which allows a court to “compel agency action unlawfully withheld or unreasonably delayed.” (Compl. at ¶¶ 76-90); 5 U.S.C. § 706(1). The second arises under the Mandamus Act, 28 U.S.C. §§ 1361, 1651, seeking to compel defendants to perform a non-discretionary duty, including lawful adjudication of their visa applications. (Id. at ¶¶ 91-106.) The third is a request for a declaratory judgment that the defendants have failed to discharge a mandated official duty. (Id. at ¶¶ 107-110.) Plaintiffs' fourth cause of action arises under the Take Care Clause of the United States Constitution, seeking a judgment that the Department of State's suspension of and alleged untimely adjudication of visa applications is invalid because it is “unfaithful” to the Immigration and Nationality Act of 1965 (“INA”). (Id. at ¶¶ 111-115.)

As noted above, plaintiffs filed a motion for preliminary injunction to compel defendants to conduct consular visa interviews and issue final decisions on plaintiffs' pending visa applications by September 28, 2021. (Doc. No. 2-2.)

LEGAL STANDARDS

A. Motion for Preliminary Injunction

“The proper legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.'”) (quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiffs favor.” All. for Wild Rockies, 632 F.3d at 1134-35 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter, 555 U.S. 7.^[1]The party seeking the injunction bears the burden of proof as to each of these elements. See Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

B. Administrative Procedure Act

Pursuant to the APA, a court “shall compel agency action unlawfully withheld or unreasonably delayed” where an agency fails to take a discrete action it is required to take. 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). A plaintiff asserting a claim of unreasonable delay under the APA must show that the agency (1) had a nondiscretionary duty to act and (2) unreasonably delayed in acting on that duty. Norton, 542 U.S. at 63-65; 5 U.S.C. §§ 555(b), 701(a)(2).

In evaluating the reasonableness of an agency delay, a court considers six factors:

(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.'

In re People's Mojahedin Org. of Iran, 680 F.3d 832, 836-37 (D.C. Cir. 2012) (quoting Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984) (“TRAC”)). [T]he central question is whether the agency's delay is so egregious as to warrant mandamus.” Id. at 837 (internal quotation marks omitted).

ANALYSIS

Before turning to the merits of the pending motion for preliminary injunction, the Court must address two threshold issues. The United States has challenged the standing of all of the plaintiffs and, relatedly, whether venue is proper in this district.

A. Standing

The government briefly argues that the Yemeni plaintiffs lack standing to bring this action because they do “not have a constitutional right to obtain the diversity visa.” (Doc. No. 8 at 10.) The government asserts that an alien outside the United States, like the Yemeni plaintiffs, “typically lacks standing to challenge immigration determinations.” (Id. (quoting Yuk-Ling Wu Jew v. Att'y Gen., 524 F.Supp. 1258, 1259 n.4 (D.D.C. 1981) (citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)).)

Nonresident aliens lack standing to challenge final consular decisions under the “constitutional violation” exception to the doctrine of consular nonreviewability. See Mohamed v Pompeo, No. 1:19-cv-01345-LJO-SKO, 2019 WL 4734927, at *2 (E.D. Cal. Sept. 27, 2019) (collecting cases); Benjamin v. United States Dep't of State, No. 17-CV-03587-LB, 2018 WL 1142124, at *4 (N.D. Cal. Mar. 2, 2018) (citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)) (finding that nonresident alien does not have standing to challenge the denial of a visa application); Mostofi v. Napolitano, 841 F.Supp.2d 208, 210-12 (D.D.C. 2012) (reviewing the exception to the doctrine of consular nonreviewability applicable where a U.S. citizen or legal resident plaintiff asserts that the visa decision violates a constitutionally protected liberty interest). But here, like the plaintiffs in Mohamed found to have had standing, the consular nonreviewability doctrine is wholly...