Rai v. Biden

567 F.Supp.3d 180

Karolina RAI et al., Plaintiffs,

v.Joseph R. BIDEN, in his official capacity as President of the United States of America, et al., Defendants.

Civil Action No. 21-cv-863-TSC

United States District Court, District of Columbia.

Signed September 27, 2021

Curtis Lee Morrison, Morrison Urena, L.C., Rancho Santa Margarita, CA, Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Kristina Ghazaryan, Pro Hac Vice, Law Office of Kristina Ghazaryan, North Hollywood, CA, Rafael N. Urena, Pro Hac Vice, Venice, CA, for Plaintiffs Karolina Rai, Krymachou Kiryl, Zaitsava Yanina, Hanna Rybakova, Siarhei Rybakou, A. R., M. R., Ntambwa Fabrice Mulumba, Raman Anatolievich Kranin, Tatsiana Uladzimirauna Kranina, A. R. K., Y. R. K., Siarhei Kadulbovich, Lukasz Henryk Nytko, Anna Bernadetta Nytko, Marta Anna Swiatek, Lukasz Eugeniusz Swiatek, K. K. S., Justyna Ryba, Dariusz Ryba, Nikita Petrov, Kristina Toropova, Artsiom Karpovich, Anna Pedakhovskaya, Ilia Edisherov, Ivan Rai, Piotr Sebastian Magac, Michal Jerzy Strzyzowski, Yauheni Biasonau, Hanna Biasonava, Y. B., L. B., Roxana Stefan, Petrus Stefanus Scheepers, A. S. S., Kamil Patryk Popardowski, Martyna Jagoda Hebda, Andrey Novogrodskiy, Marina Roman, A. N., Yuliya Lavrinok, Aliaksei Davydau, Marharyta Davydava.

Cara Elizabeth Alsterberg, Michelle M. Ramus, William Bateman, III, William Herrick Weiland, United States Department of Justice, Katherine Boyd Palmer-Ball, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge Plaintiffs are 2021 diversity visa program selectees and their derivative beneficiaries who reside in Europe, South Africa, Namibia, and China. Plaintiffs allege that the State Department and its Kentucky Consular Center unlawfully implemented two Presidential Proclamations to suspend the processing, adjudication, and issuance of their 2021 diversity visa applications. Plaintiffs have moved for a preliminary injunction, ECF No. 8, asserting that if the State Department does not issue Plaintiffs visas before midnight on September 30, 2021, the State Department cannot issue those visas without a court order.

The government has moved to dismiss for lack of subject matter jurisdiction. ECF No. 38. For the reasons stated below, the court will GRANT in part and DENY in part Defendants’ motion to dismiss and will GRANT in part and DENY in part Plaintiffs’ motion for preliminary injunction.

I. BACKGROUND

A. The Diversity Visa Program

Congress created the diversity visa program under the Immigration and Nationality Act ("INA") to allow for more immigration to the United States from countries with traditionally low rates of immigration. See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). The program permits the State Department to issue up to 50,000 visas to individuals from specified countries.¹ 8 U.S.C. § 1151(e). Millions of people enter the lottery every year. See U.S. Dep't of State, Diversity Visa Program, DV 2019-2021: Number of Entries During Each Online Registration Period by Region and Country of Chargeability.² Those selected for the program are not guaranteed to receive a visa—only the opportunity to apply for one. A successful lottery applicant is eligible to receive a visa only during the fiscal year in which she applied and was selected. 8 U.S.C. § 1153(e)(2) ; 22 C.F.R. § 42.33(f). If the selectee does not receive a visa by the end of the fiscal year, then they are out of luck: "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 in which the visa applicant was selected. Id.

B. The Adjudication Process

The diversity visa program is administered at the State Department's Kentucky Consular Center ("KCC"). See 9 Foreign Affairs Manual ("FAM") 502.6-4(c)(1)(a). After successful applicants are notified of their selection and visa number, they must then submit a DS-260, Immigrant Visa and Alien Registration Application, and various supporting documents to the KCC. See 9 FAM 502.6-4(d)(1)(a), (b). When the KCC confirms that an applicant has properly completed and submitted the DS-260 and necessary paperwork, the applicant will be considered "documentarily qualified." 9 FAM 502.6-4(c)(2)(c). Then, as determined by the State Department's monthly visa bulletin, the "KCC will schedule" the selectee for an immigrant visa interview at a United States embassy or consulate "when his or her regional lottery rank number is about to become current." 9 FAM 502.6-4(d)(2). A consular officer's decision to "issue or refuse an immigrant visa application must be based on a personal interview, during which the consular officer must ensure that all required documentation has been provided, that there is a legal basis for the applicant to immigrate, and there are no ineligibilities that would affect the visa issuance." 9 FAM 504.1-3(f). "A visa can be refused only upon a ground specifically set out in the law or implementing regulations." 22 C.F.R. § 40.6.

C. Presidential Proclamations and State Department Guidance

Between January and May 2020, then President Trump issued five Presidential Proclamations containing similar provisions that suspended the entry of certain immigrants and non-immigrants from specific countries. Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020) (China); Proclamation No. 9992, 85 Fed. Reg. 12855 (Feb. 29, 2020) (Iran); Proclamation No. 9993, 85 Fed. Reg. 15045 (Mar. 11, 2020) (26 European countries in Schengen Area); Proclamation No. 9996, 85 Fed. Reg. 15341 (Mar. 14, 2020) (United Kingdom and Ireland); Proclamation No. 10041, 85 Fed. Reg. 31933 (May 24, 2020) (Brazil). In his first days in office, President Biden issued Proclamation 10143, which extended the suspension on entry of certain immigrants and nonimmigrants from the Schengen Area, United Kingdom, Ireland, and Brazil, and added South Africa to the list. Proclamation No. 10143, 86 Fed. Reg. 7467 (Jan. 25, 2021).

The five "Regional Proclamations" restrict the entry of persons who, within 14 days of seeking entry to the United States, were physically present within various COVID-19 global "hotspots." But they also contain exceptions to that prohibition on entry, including an exception for those persons whose entry the Secretary of State deems to be "in the national interest." See , e.g. , Proclamation No. 9984; Proclamation No. 10143. Beginning on March 20, 2020, the State Department interpreted the Regional Proclamations to suspend not only "entry" of immigrants, but also the issuance of visas, unless an applicant (1) was eligible for an exception to the Regional Proclamations (such as the national interest exception), and (2) qualified for mission critical or emergency designations under the State Department's guidance. See ECF No. 8-4, Mot. for PI, Ex. 3, 20 STATE 42180 ¶ 4. See also ECF No. 8-6, Mot. for PI, Ex. 5, 20 STATE 61886 ¶ 1. That suspension policy applied to diversity visas because the State Department did not consider those visas to be in the national interest or meeting a mission critical or emergency designation. See ECF No. 8-5, Mot. for PI, Ex. 4, 20 STATE 54966, Mission-Critical Visa Services to Include IR1s and IR2s.

On May 1, 2020, Defendants released the Diplomacy Strong Framework ("Diplomacy Strong"), which was implemented on July 14, 2020. The Diplomacy Strong guidance required a phased resumption of routine visa services, but the suspension of diversity visas remained in place. See U.S. Dep't of State, Suspension of Routine Visa Services ; 20 STATE 65080 ¶¶ 1-8.

In response, the KCC stopped processing diversity visa applications and stopped scheduling eligible applicants for interviews at embassies and consular posts, instead dedicating its resources to processing visa applications that were not subject to the suspension policy. See ECF No. 41, Hr'g Tr. at 21-23 (June 10, 2021).

On April 8, 2021, eight days after Plaintiffs filed their lawsuit, the Secretary of State updated the State Department's policy with regards to the Regional Proclamations. ECF No. 30-1, Defs.’ Opp'n, Ex. A. The Secretary announced a national interest exception to the Proclamations and that "Immigrant Visa processing posts may now grant immigrant ... visas to applicants otherwise eligible, notwithstanding" the Regional Proclamations. Id. As a result, the KCC began processing diversity visa applications and scheduling qualified applicants for interviews, and embassies and consular posts began adjudicating and issuing diversity visas. See ECF No. 30-2, Defs.’ Opp'n., Ex. B. at 4.

D. Plaintiffs’ Lawsuit and the Government's Motion to Dismiss

Plaintiffs are 60 selectees of the 2021 diversity visa program and their 107 derivative beneficiaries (their spouses and children under 21 years old).³ The sixty named Plaintiffs reside in countries subject to Proclamations 9984 and 10143. ECF No. 22, First Amended Compl. ("FAC") ¶ 2. They were selected in the 2021 diversity visa lottery and subsequently applied for 2021 diversity visas. Id. ¶¶ 18-19. All are "documentarily qualified" and have had current visa numbers since May 2021 or earlier. Id. ¶¶ 19, 508-509. As of August 13, 2021, twenty-two of them have had their applications adjudicated. See ECF No. 49, Joint Status Report at 5-6 (Aug. 13, 2021). The other thirty-eight, as of August 13, 2021, were still waiting. Id. The parties agree that of those thirty-eight, twenty-five are unlikely to receive an interview before the end of the fiscal year. Id. at 6.

Plaintiffs claim that Defendants implemented a regional "No-Visa Policy" suspending the processing, adjudication, and issuance of diversity visas for persons subject to Proclamations 9984 and 10143. Plaintiffs argue that the regional No-Visa Policy violates the Administrative Procedures Act ("APA"), constitutional separation of powers principles, and the nondelegation doctrine,...