Khamrabaeva v. Blinken

FARANGIS KHAMRABAEVA, et al. Plaintiffs, v. ANTONY BLINKEN, U.S. Secretary of State, et al., Defendants.

ZEBO MAVLONOVA, et al. Plaintiffs, v. ANTONY BLINKEN, U.S. Secretary of State, et al., Defendants.

NOHA MAHMOUD ELSAYED ELSADAWY, et al. Plaintiffs, v. ANTONY BLINKEN, U.S. Secretary of State, et al., Defendants.

SHERIF SHAABAN IBRAHIM DAIF, et al. Plaintiffs, v. ANTONY BLINKEN, U.S. Secretary of State, et al., Defendants.

KHOLMATJON VOKHOBOV, et al. Plaintiffs, v. ANTONY BLINKEN, U.S. Secretary of State, et al., Defendants.

Civil Action Nos. 22-cv-1219 (RC), 22-cv-2400 (RC), 22-cv-1381 (RC), 22-cv-2474 (RC), 22-cv-2128 (RC)

Re Document No.: 14, 16, 20, 3, 9, 11, 15, 16, 198, 9, 11

United States District Court, District of Columbia

September 23, 2022

MEMORANDUM OPINION

DENYING PLAINTIFFS' MOTIONS FOR TEMPORARY RESTRAINING ORDERS

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the Court are motions for a temporary restraining order (“TRO”) in five cases.^[1] In each case, Plaintiffs are families of foreign nationals who were selected out of a lottery run by the U.S. Department of State (the “Department”) to participate in the diversity visa (“DV”) program for fiscal year 2022. The DV program allocates up to 55,000 immigration visas annually to qualified individuals from countries with historically low levels of immigration to the United States through an intricate lottery system. Plaintiffs filed suit alleging that the Department unlawfully withheld adjudication of their diversity visa applications. In early September 2022,^[2] Plaintiffs filed substantially similar TRO motions in each case seeking declaratory and injunctive relief ahead of September 30, 2022, the statutory deadline after which their eligibility to participate in the fiscal year 2022 DV program expires. Defendants filed an opposition in Khamrabaeva v. Blinken, No. 22-cv-1219 on September 13, 2022 (“Def.'s Opp'n”). At the Court's request, Defendants submitted a joint opposition, incorporating and supplementing the opposition in Khamrabaeva, in the remaining four cases on September 16, 2022 (“Def.'s Joint Opp'n”) and Plaintiffs filed a joint reply on September 19, 2022. The Court held a hearing on the motions on September 20, 2022. Because Plaintiffs' motions involve common questions of law and fact, the Court considers them jointly. Fed.R.Civ.P. 42(a). The Court sympathizes with Plaintiffs' situation, but for the reasons stated below their motions are denied.

II. LEGAL AND FACTUAL BACKGROUND

In general, a foreign national who seeks to enter the United States must first obtain a visa from the Department. Under two umbrella categories - immigrant visas and nonimmigrant visas - a variety of different types of visas may be granted to applicants under different conditions and for different purposes. See Directory of Visa Categories, Department of State, available at https://traveLstate.gov/content/travel/en/us-visas/visa-information-resources/aH-visa-categories.html. Immigrant visas are for those who intend to relocate permanently to the United States, while nonimmigrant visas are for those seeking to stay only temporarily. Only one category of immigrant visa is relevant to this case: the diversity visa.

The DV program allocates up to 55,000 visas annually for foreign nationals seeking to permanently relocate to the United States from historically “low-admission” countries and regions. See 8 U.S.C. §§ 1151(a)(3), (e); 8 U.S.C. § 1153(c). Anticipating the large number of individuals who apply for diversity visas each year, Congress created rules governing the diversity visa application and adjudication process and empowered the Secretary of State (the “Secretary”) to oversee it. See 8 U.S.C. §§ 1153(c), 1154(a)(1)(I), 1202.^[3] Specifically, Congress directed the Secretary to establish a system to issue diversity visas to “eligible qualified immigrants strictly in a random order.” 8 U.S.C. § 1153(e)(2). That system, embodied by 22 C.F.R. § 42.33, takes the form of an annual lottery.

At a high level, individuals like Plaintiffs who were lucky enough to be chosen from this lottery (“selectees”) have the opportunity submit a visa application and receive a “rank order” that determines the order in which they may be scheduled for an interview at a U.S. embassy or consulate to have their application adjudicated. See 22 C.F.R. § 42.33(b)-(d); Gomez v. Trump, 485 F.Supp.3d 145, 159 (D.D.C. 2020). Selectees whose applications have not been adjudicated by the end of the fiscal year on September 30 lose eligibility. 22 C.F.R. § 42.33(f). Plaintiffs, whose families seek to immigrate from Tajikistan, the United Arab Emirates, Saudi Arabia, and Uzbekistan, filed suit to avoid such an outcome.

III. LEGAL STANDARD

Like a preliminary injunction, a temporary restraining order is an “extraordinary remedy.” Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Gomez v. Trump, 485 F.Supp.3d at 168 (“Motions for temporary restraining orders and preliminary injunctions are analyzed using the same standards.”). When considering an application for emergency injunctive relief, courts consider four factors: “(1) whether there is a substantial likelihood that plaintiffs will succeed on the merits of their claims, (2) whether plaintiffs will suffer irreparable injury absent an injunction, (3) whether an injunction would harm the defendants or other interested parties (the balance of harms), and (4) whether the public interest would be furthered by an injunction.” Monument Realty LLC v. Washington Metro. Area Transit Auth., 540 F.Supp.2d 66, 74 (D.D.C. 2008). A TRO “should be granted only when the party seeking relief, by a clear showing, carries the burden of persuasion” on all four factors. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).

Courts in this district have described the substantial likelihood of success on the merits factor as “particularly important” because without such a showing, “there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review.” Hubbard v. United States, 496 F.Supp.2d 194, 198 (D.D.C. 2007) (quoting Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C. 1999)). “[A] failure to show a likelihood of success on the merits is sufficient to defeat a motion for a preliminary injunction.” Archdiocese of Washington v. Washington Metro. Area Transit Auth., 281 F.Supp.3d 88, 99 (D.D.C. 2017), aff'd, 897 F.3d 314 (D.C. Cir. 2018) (citing first Ark. Dairy Co-op Ass'n, Inc. v. United States Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009); and then Apotex, Inc. v. FDA, 449 F.3d 1249, 1253-54 (D.C. Cir. 2006)).

IV. ANALYSIS

Plaintiffs selected four claims from their pleadings to pursue in their TRO motions: (1) that the Department unlawfully withheld consular interviews and therefore Plaintiffs' ability to complete their visa applications, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1); (2) that the Department unreasonably delayed adjudication of their visa applications, in violation of 5 U.S.C. § 706(1); (3) that two changes to the Department's visa processing and adjudication policies were arbitrary and capricious under the APA, 5 U.S.C. § 706(2); and (4) that the Department's failure to fulfill its legal duty to adjudicate Plaintiffs' visa applications gives the court mandamus jurisdiction under 28 U.S.C. § 1361. See Plaintiffs' Motion for Temporary Restraining Order (“TRO”), Vokhobov v. Blinken, No. 22-cv-2128, ECF No. 8-1 at 16-28.^[4]

The Court considers the third allegation first, which it will refer to as the “policy claims,” before proceeding to joint consideration of claims one, two, and four.^[5] In service of these claims, the motion fleetingly alleges that the Department adjudicated diversity visa applications out of rank order. TRO at 21, 28. Plaintiffs' reply brief seemingly attempts to recast these spare allegations as a separate claim under Accardi v. Shaughnessy, 347 U.S. 260 (1954), backed up by new factual allegations.^[6] See Plaintiffs' Reply, Vokhobov v. Blinken, 22-cv-2128, ECF No. 11, at 13-15. The Court takes note of these factual allegations for purposes of evaluating Plaintiffs' other claims, but does not consider this standalone Accardi claim because it was not properly pled and Defendants did not have an opportunity to respond. See Bird v. Barr, 2020 WL 4219784 *1, *2 (D.D.C. July 23, 2020) (“[A] proper motion for a preliminary injunction seeks to enjoin the action that the complaint alleges is unlawful prior to the completion of the litigation, and without such a connection between the claim and requested injunction, there is simply no jurisdictional basis for the Court to grant preliminary relief.”) (formatting omitted).

A. Policy Claims

Plaintiffs' policy claims arise out of two actions taken by the Department that allegedly affected the processing and adjudication of diversity visa applications. First Plaintiffs take issue with a February 2022 amendment to a section of the Department's internal guidelines, embodied in the Foreign Affairs Manual (“FAM”), that deals with diversity visa processing (the “FAM amendment”). TRO at 6-8. Specifically, in February 2022, 9 FAM 502.6-4 was amended to read that the Kentucky Consular Center (“KCC”), which is responsible for pre-adjudicatory processing of diversity visa applications, will schedule interviews for applicants “around the time their regional program rank number is current,” whereas previously it said that KCC will schedule interviews when an applicant's “regional lottery rank number is about to become current.” Compare Ex. B to TRO at 12, ECF No. 8-4 with Ex. C to TRO at 11, ECF No. 8-5 (emphasis added). This...