422 F.Supp.3d 81
D.D.C.2019Background
- The Diversity Visa (DV) Program allocates 50,000 immigrant visas annually by randomized lottery; registration for DV-2021 ran Oct. 2–Nov. 5, 2019.
- On June 5, 2019 the State Department issued an interim final “Passport Rule” requiring registrants to possess a valid passport at the time of lottery registration (previously only required after selection), invoking the APA’s foreign-affairs exception and soliciting comments post-publication.
- Plaintiffs: three non-U.S. nationals (Applicant Plaintiffs) who say they lack passports / cannot obtain them in time to register, and two U.S.-based relatives (Family Plaintiffs) seeking family reunification; they sued under the APA challenging the lack of notice-and-comment and moved for a preliminary injunction to enjoin the rule for the 2021 lottery.
- Plaintiffs argued that the rule forces pre-registration expenditures and effectively forecloses their chance to enter this year’s lottery (an irreparable injury); Defendants argued Plaintiffs lack standing and that any alleged harm is self-inflicted or not traceable to the rule.
- The court found at least one plaintiff substantially likely to have standing (procedural and concrete injury) but concluded Plaintiffs failed to show the “certain and great” irreparable harm necessary for a preliminary injunction, and denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge Passport Rule | Plaintiffs suffer concrete injury (cost/time to get passport) and lost opportunity to comment; procedural injury linked to their interest in the lottery | Any extra cost is self-imposed; assistance would be available if selected; injury not traceable to State | At least one plaintiff (K.K.) is substantially likely to have standing (concrete + procedural injury). |
| Zone of interests under INA / APA | Plaintiffs (would-be entrants) are the direct subjects of the regulation and fall within interests the INA protects | Defendants: plaintiffs are outside the INA’s zone of interests | Court: plaintiffs fall within the INA’s zone of interests; APA review is appropriate. |
| Irreparable harm from losing this year’s lottery chance | Losing the opportunity to enter this year’s lottery is an irreparable, non-remediable injury (even if chance is small) | The chance is tiny (~0.8%), the lottery recurs annually, and obstacles (cost, late notice) do not directly result from the rule | Denied: loss of a small, repeatable chance is not a “certain and great” irreparable harm and lacks necessary direct causation. |
| Procedural injury alone as basis for emergency relief | Procedural deprivation (no prior notice-and-comment) bolsters entitlement to relief | Procedural injury without concrete, irreparable harm cannot justify emergency relief | Court: procedural injury supports standing but, by itself, does not satisfy the high irreparable-harm standard for a PI. |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (sets the four-factor standard for preliminary injunctions).
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III requires a concrete injury-in-fact for standing).
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (procedural-right plaintiffs must show causal connection to a risk of injury to their interests).
- Lexmark Int’l v. Static Control Components, 572 U.S. 118 (2014) (zone-of-interests test for APA review is not especially demanding).
- Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987) (being the subject of contested regulation supports standing).
- Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) (irreparable harm must directly result from the action to be enjoined).
- Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) (irreparable-injury standard: injury must be certain, great, and beyond remediation).
- Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017) (even small monetary losses can qualify as concrete injuries for standing).
- Nken v. Holder, 556 U.S. 418 (2009) (equities and public-interest factors merge when injunction is sought against the government).