Pushkar v. Blinken

LIUDMYLA PUSHKAR, Plaintiff, v. ANTONY BLINKEN, et al., Defendants.

Civil Action No. 21-2297 (CKK)

United States District Court, District of Columbia

September 23, 2021

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY United States District Judge

Plaintiff Liudmyla Pushkar is a selectee of the Diversity Visa Lottery for the 2021 fiscal year. By statute, her eligibility to receive a diversity visa expires on September 30, 2021. Plaintiff has not received an appointment for a consular interview, one of several prerequisites to obtaining a diversity visa. In light of the fast-approaching September 30, 2021 deadline, Plaintiff filed an [11] Emergency Motion for a Temporary Restraining (“TRO”). Therein Plaintiff requests an order compelling Defendants Secretary of State Antony Blinken and Secretary of Homeland Security Alejandro J. Mayorkas (“Defendants”) to “schedule” her visa interview and “issue” her immigrant visa before September 30 2021. In response to Plaintiff's TRO Motion, Defendants filed a consolidated opposition and motion to dismiss contending that Plaintiff's Complaint fails to state a claim for relief.

Upon consideration of the pleadings, ^[1] the relevant legal authorities, and the record as a whole, the Court will DENY Plaintiff's [2] Motion for a Temporary Restraining Order and will HOLD IN ABEYANCE Defendant's Motion to Dismiss until briefing is completed in accordance with the schedule set forth in the accompanying Order.

I. BACKGROUND

A. The Diversity Visa Program

Under the Immigration and Nationality Act (“INA”), “Congress has provided for up to 55, 000 immigrant diversity visas to be distributed each fiscal year to foreign nationals that hail from countries with historically low levels of immigration to the United States.” Filazapovich v. Dep't of State, No. 21-cv-943 (APM), 2021 WL 4127726, at *2 (D.D.C. Sept. 9, 2021) (citing 8 U.S.C. §§ 1151(e), 1153(c)). “Millions of hopefuls enter a lottery for the chance to apply for one of the 55, 000 allotted diversity visas.” Id. (citing Gomez v. Trump (“Gomez I”), 485 F.Supp.3d 145, 159 (D.D.C. 2020)). The winners of the lottery “submit an application and various documents to be eligible for a visa number, ” which can be used only during the fiscal year for which the selectee applied. Almaqrami v. Pompeo, 933 F.3d 774, 776-77 (D.C. Cir. 2019).

Once the selectee is assigned a visa number, he or she must submit required documents to the Kentucky Consular Center (“KCC”). See 9 FAM 502.6-4(d)(1). The KCC then reviews the submitted materials for completion, and, upon deeming the applicant “documentarily qualified, ” schedules an interview at a local consular office for the applicant when [her] regional lottery rank number is “about to become current.” 9 FAM 502.6-4(d)(2); see also 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 [State Department's] Visa Bulletin.” Gjoci v. Dep't of State, Case No. 1:21-cv-00294-RCL, 2021 WL 3912143, at *2 (D.D.C. Sept. 1, 2021); see also FAM 502.6-4(d)(2). “And the availability of interview appointments may depend on the available resources and competing demands of consulates in an applicant's country of residence.” Gjoci, 2021 WL 3912143, at *2. Interviews for lottery selectees are “scheduled in order of their rank number.” Id.; see also Defs.' Opp'n Ex. B, Declaration of Morgan Miles (“Miles Decl.”) ¶ 6, ECF No. 17-2 (“KCC uses the rank number . . . to determine the order in which cases are eligible to be scheduled for appointments.”); id. (“[Diversity visa] selectees with a low rank order, as reflected in their case number, are more likely to get the opportunity to interview, while those with higher numbers are less likely to be scheduled.”). Thereafter, “if [s]he meets the criteria to obtain one, the State Department ‘shall' issue [her] a diversity visa.” Almaqrami, 933 F.3d at 777 (quoting 8 U.S.C. § 1153(c)).

“If the selectee does not receive a visa by the end of the fiscal year, however, [s]he is out of luck[.]” Gomez I, 485 F.Supp.3d at 159. “Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the [fiscal year].” Almaqrami, 933 F.3d at 777.

Demand for diversity visas “regularly outstrips supply.” Gomez I, 485 F.Supp.3d at 159 (noting, for example, that “in Fiscal Year 2018, there were 14.7 million qualified entries”); see also P.K. v. Tillerson, 302 F.Supp.3d 1, 3 (D.D.C. 2017) (“Millions of people enter the lottery every year.”). “Those selected for the [diversity visa] program are not guaranteed a visa-only the opportunity to apply for one.” P.K., 302 F.Supp.3d at 3.

According to Defendants, 71, 817 people were selected from the Fiscal Year 2021 Diversity Visa (“DV-2021”) lottery, accounting for 137, 969 diversity visa applicants (including selectees' spouses and children) seeking one of 54, 850 available visas. Defs.' Opp'n at 10; Miles Decl. ¶ 4.

B. Diversity Visa Processing During COVID-19 Pandemic

Neither Plaintiff's TRO Motion nor her Complaint raises any specific claim contesting Defendants' policies with respect to processing diversity visa petitions during the COVID-19 pandemic. Nonetheless, the Court shall provide a brief summary of the policies relevant to the processing of applications for DV-2021 selectees.^[2]

Beginning in March 2020, the State Department suspended routine visa processing services due to the COVID-19 pandemic, limiting embassies and consulates to processing visa cases deemed “emergency” or “mission critical.” Defs.' Opp'n Ex. A, Declaration of Francis Chris Lanning (“Lanning Decl.”) ¶ 2, ECF No. 17-1. Diversity visas were excluded from these definitions. Id.

In April 2020, then-President Donald J. Trump issued 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).^[3] 85 Fed. Reg. 23, 441 (Apr. 27, 2021). 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, 418 (Dec. 31, 2020). Although these Proclamations provided certain exceptions in “the national interest” to the general suspension of immigrant entry, there was “no specific national interest exceptions available for diversity visa applicants[.]” Gomez I, 485 F.Supp.3d at 162.

The State Department interpreted these proclamations and associated guidance as “suspend[ing] not only entry but also the issuance of visas . . . not subject to one of the enumerated exceptions.” Id. Accordingly, following the issuance of Presidential Proclamation 10014, the State Department instructed consular posts that they could adjudicate immigrant visas only “for applicants that [the] post believes may meet an exception to the [Presidential Proclamation], including the national interest exception, and that constitute a mission critical category.” Filazapovich, 2021 WL 4127726, at *3.

On July 8, 2020, the State Department issued guidance that created a “phased approach” to the “resumption of routine visa services, ” which “laid out visa-processing priorities across three phases of resumed services.” Id. Under this three-phase approach, diversity visas could not be processed until a consular post reached “Phase Three, ” and even then, the consular post could process visas only for selectees eligible for an exception under Proclamation 10014. See id.

The State Department issued new visa-processing guidance in November 2020, indicating that although its earlier July 2020 guidance “provides important context and structure, ” consular posts “are no longer obligated to be in a specific . . . phase to adjudicate a particular visa class as described in prior guidance.” Id. The November 2020 guidance nonetheless “defaulted to a tiered and hierarchical approach that ‘closely resembled” the earlier guidance. Id. (internal quotation marks and citation omitted). Pursuant to the November 2020 guidance, “[diversity visa processing . . . remained relegated to the lowest priority tier.” Id. Defendants indicate that the November 2020 guidance “prioritized the processing of immediate relative and certain special immigrant visa cases” based on the State Department's “assessment of competing interests” including its “longstanding policy of facilitating family reunification[.]” Defs.' Opp'n at 5.

On February 19, 2021-after the transition of presidential administrations-the State Department issued revised guidance on “Scheduling and Prioritizing Immigrant Visas and Diversity Visa Cases.” Lanning Decl. Ex. 2, ECF No. 17-4. Anticipating “the upcoming expiration” of Proclamation 10014, ” the February 2021 guidance instructed the “[National Visa Center], KCC, and consular sections worldwide [to] begin scheduling . . . DV-2021 cases currently subject to [Proclamation] 10014 for appointments starting in April 2021.” Filazapovich, 2021 WL 4127726, at *4. The guidance “incorporated the tiered prioritization framework announced in November 2020” and emphasized that “[visa-]processing posts should continue to maximize their resources to schedule as many family-based [visa] and fiance [visa] appointments as possible, focusing on reducing any Immediate Relative (IR) visa backlog each month, as resources allow.” Id. But posts with “immediate relative backlogs” were instructed to “schedule some . . . Diversity Visa (DV) cases each month considering the backlog, if any, for each type of case[.]” Id.

On February 24, 2021,...