Panda v. Wolf

487 F.Supp.3d 48

Chandan PANDA, et al., Plaintiffs,

v.Chad F. WOLF, et al., Defendants.

Case No. 20-cv-1907 (APM)

United States District Court, District of Columbia.

Signed September 16, 2020

Geoffrey Forney, Wasden Banias LLC, Philadelphia, PA, Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, for Plaintiffs.

Glenn M. Girdharry, Joshua Samuel Press, Aaron S. Goldsmith, U.S. Department of Justice Office of Immigration Litigation, DC Section, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

Plaintiffs in this case are Indian nationals who were recently residing in the United States in lawful nonimmigrant status under temporary labor petitions approved by the Department of Homeland Security. For various reasons, they traveled to India, and now must receive visas to return to the United States. Id. Plaintiffs allege that the United States consular offices, acting under the direction of the Secretary of Homeland Security and the Secretary of State, have withheld the adjudication of of their visa applications pursuant to the President's recently issued Presidential Proclamation 10052 (dated June 22, 2020), which suspends the entry of foreign nationals within certain categories of nonimmigrant visas. Plaintiffs ask the court to preliminarily enjoin Defendants from applying Proclamation 10052 in adjudicating their visa applications, and to order Defendants to adjudicate their applications within fourteen days.

Plaintiffs’ preliminary injunction motion raises three claims, two of which overlap substantially with claims raised in a related action, Gomez v. Trump , 20-cv-1419 (APM). The court considered the merits of those overlapping claims in that action, and reserved for adjudication in this separate action the merits of Plaintiffs’ third claim (which was not raised by the Gomez Plaintiffs), along with all non-merits defenses. For substantially the same reasons discussed in Gomez , the court concludes that Plaintiffs have not established that injunctive relief would prevent their irreparable harm or that an injunction would be in the public interest. Accordingly, the court denies Plaintiffs’ motion for preliminary injunctive relief.

I.

Plaintiffs in this case are 169 Indian nationals with approved H-1B skilled worker petitions and their derivative beneficiaries. See Compl., Panda v. Wolf , 20-cv-1907 (APM), ECF No. 1 [hereinafter Compl.], at 21; see also Oral Arg. Tr., Gomez v. Trump , 20-cv-1419 (APM), ECF No. 122, at 54 (updating the court on the number of Plaintiffs in this action). Plaintiffs were all residing and working in the United States in lawful nonimmigrant status, but for various reasons went to India¹ and now require visas to travel back to the United States. See Pls.’ Am. Mem. of P. & A. in Supp. of Their Mot. for a Prelim. Inj., ECF No. 8 [hereinafter Pls.’ PI Mem.], at 1. They have all submitted DS-160 applications to obtain visas that will allow them to return to the United States. Id. However, on June 22, 2020, the President issued Presidential Proclamation 10052 ("Proclamation 10052"), which suspends until December 31, 2020, the entry of foreign nationals seeking admission to the United States pursuant to specified categories of nonimmigrant visas, including the visas Plaintiffs seek, unless an applicant is eligible for an enumerated exception. See 85 Fed. Reg. 38,263 (June 22, 2020). Plaintiffs allege that "consulates are withholding a final adjudication of Plaintiffs’ applications based on the application of the President's recently issued Proclamation 10052." Pls.’ PI Mem. at 1.

Plaintiffs assert that (1) the Proclamation is ultra vires ; (2) Defendants’ implementation of the Proclamation by withholding the adjudication of Plaintiffs’ visa applications is arbitrary and capricious in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) ; and (3) the suspension of Plaintiffs’ approved nonimmigrant labor petitions violates the APA's procedural requirements governing the suspension of licenses, 5 U.S.C. § 558(c). Pls.’ Mem. at 24–37. They seek a preliminary injunction (1) enjoining Defendants from applying Proclamation 10052 in adjudicating Plaintiffs’ visa applications and determining whether they are admissible to the United States to resume H-1B or H-4 status, and (2) directing the Secretary of State and the United States consulates to process, adjudicate, and render final decisions on Plaintiffs’ DS-160 visa applications within fourteen days. Id. at 40.

The court bifurcated briefing on Plaintiffs’ motion, considering the merits of Plaintiffs’ first two claims alongside overlapping claims raised in a related action, Gomez v. Trump , 20-cv-1419 (APM). See Am. Order, Gomez v. Trump , No. 20-cv-1419 (APM), ECF No. 79; Order, Panda v. Wolf , No. 20-cv-1907 (APM), ECF No. 23. The court issued a Memorandum Opinion and Order on those issues on September 4, 2020, see Mem. Op. & Order, Gomez v. Trump , 20-cv-1419 (APM), ECF No. 123 [hereinafter Gomez Mem. Op.], finding that the challenges to Proclamation 10052 were unlikely to succeed on the merits, id. at 39–58, and that the APA challenges to Defendants’ implementation of the Proclamation were likely to succeed, id. at 58–66. However, the court held that only a subset of the plaintiffs in the Gomez action—foreign nationals seeking diversity immigrant visas—had established the additional prerequisites for injunctive relief. Id. at 75–79. In the interest of time and judicial economy, the court incorporates by reference its analysis of the overlapping issues in that case, along with its resolution of the Defendants’ arguments regarding consular nonreviewability and whether Plaintiffs had identified a cause of action. See id. at 34–38.

Because the court only addressed the merits of the Panda Plaintiffs first two claims in the Gomez opinion, it did not consider the merits of their third claim (whether Defendants’ actions constitute an unlawful suspension of a license under 5 U.S.C. § 558(c) ), or any other non-merits defenses. See id. at 24 n.4, 75 n.25. Now, Defendants argue that Plaintiffs lack standing and have not shown that they have suffered irreparable harm or that a preliminary injunction would be in the public interest. See Defs.’ Opp'n to Pls.’ Mot. for a Prelim. Inj., ECF No. 26 [hereinafter Defs.’ Opp'n], at 10–13, 18–25. On the merits, Defendants assert that Plaintiffs do not challenge discrete final agency action, and that 5 U.S.C. § 558(c) does not apply because, among other reasons, approved H-1B nonimmigrant worker petitions are not "licenses" under the APA. See id. at 13–18.

II.

"A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton , 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail on such a motion, the movant bears the burden of showing that: (1) "he is likely to succeed on the merits"; (2) "he is likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in his favor"; and (4) "an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Where, as here, the federal government is the opposing party, the balance of equities and public interest factors merge. See Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

III.

To establish standing at the preliminary injunction stage, Plaintiffs must show, based on record evidence, that it is substantially likely that at least one of them has (1) suffered a concrete and particularized injury (2) that is fairly traceable to the challenged action of the defendant and (3) that is likely to be redressed by a favorable decision. Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity , 878 F.3d 371, 376–77 (D.C. Cir. 2017) ; see also Mendoza v. Perez , 754 F.3d 1002, 1010 (D.C. Cir. 2014) (noting that, where multiple plaintiffs assert the same claims, "the court need only find one plaintiff who has standing" to establish jurisdiction over the action). The redressability requirement is "relaxed" when a plaintiff alleges a procedural injury. WildEarth Guardians v. Jewell , 738 F.3d 298, 305–06 (D.C. Cir. 2013). "[I]nstead of needing to establish that compelling the agency to follow the correct procedure would lead to a substantive result that favors the [plaintiff's] concrete interests, the [plaintiff] need only show that [her] concrete interests could be better protected." Narragansett Indian Tribal Historic Pres. Office v. FERC , 949 F.3d 8, 13 (D.C. Cir. 2020).

In support of their motion, Plaintiffs submit the declaration and visa application files of Plaintiff Yukti Bhatia. Bhatia has studied and worked in the United States for the past six years. Pls.’ Mot. for a Prelim. Inj., ECF, No. 3, App'x, ECF No. 4-47 [hereinafter Pls.’ App'x], at 635 ¶¶ 9–11. She is the beneficiary of an approved H-1B visa petition. Id. at 634 ¶¶ 4–6. Before the President issued Proclamation 10052, Bhatia had returned to India where she applied for an H-1B nonimmigrant visa by submitting a DS-160 application. Id. at 635–36 ¶ 11, 638. Bhatia completed her visa interview at the Indian consulate on February 10, 2020. Id. at 636 ¶ 12. Her application was temporarily refused pursuant to § 221(g) of the Immigration and Nationality Act, 8 U.S.C. § 1201(g), and she was asked to submit additional employer documents. Id. Though her employer submitted the required documents on February 19, 2020, id. , Bhatia heard no updates about the status of her application until July 1, 2020, when she was informed that "Embassies and Consulates will not be able to accept H1b/H4 visa applications or to continue processing of pending applications which are subject to the [ Proclamation 10052 ]" for the duration of the Proclamation, Pls.’ App'x, ECF No. 4-48, at 648....