P.K. v. Tillerson
302 F. Supp. 3d 1
D.C. Cir.2017Background
- Plaintiffs are four diversity-visa (DV) selectees from Yemen and Iran whose DV applications were not processed for FY2017 after the State Department applied President Trump’s Executive Order No. 13780 (suspending entry for nationals of six countries) to visa issuance.
- Plaintiffs allege the State Department’s June 28, 2017 cable directing consular officers to refuse DV applicants who lack a "bona fide relationship" to the U.S. was unlawful and that consular officers failed to perform their nondiscretionary duty to issue visas to statutorily eligible applicants.
- The Supreme Court (June 26, 2017) stayed lower-court injunctions as to nationals lacking any bona fide relationship with a U.S. person or entity, leaving injunctions in place for those who are similarly situated to named plaintiffs who have U.S. ties.
- After the stay, the State Department instructed consuls to determine eligibility, then whether an applicant qualified for an exemption/waiver, and to refuse (221(g)) applicants who were neither exempt nor waivable.
- Plaintiffs sought a preliminary injunction and mandamus ordering processing/issuance of FY2017 DV visas (including relief past the statutory cap/deadline) or, alternatively, an order directing the State Department to reserve any unused FY2017 visa numbers pending the Supreme Court decision.
- The court found the Supreme Court’s stay constrained most relief requested but granted Plaintiffs’ alternative equitable relief: the State Department must report and reserve unused FY2017 visa numbers for processing after the Supreme Court rules (report by Oct. 15).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the State Department unlawfully applied the Executive Order to refuse/process DV visas | The State Dept.’s policy applying §2(c) to DV issuance is arbitrary, unlawful, and consuls failed to perform mandatory duty to issue visas to eligible applicants | The Supreme Court’s stay and national-security/immigration authority permit the State Dept. to apply the Order; implementation guidance is proper | Denied: court declines to invalidate or enjoin the State Dept.’s policy because the Supreme Court’s stay limits relief while the Order’s validity is pending before the Supreme Court |
| 2. Whether court may order processing/issuance of FY2017 visas past numerical deadline or cap | Plaintiffs will be irreparably harmed if unused FY2017 visas are not held; court can use equitable/mandamus powers to preserve remedy if Supreme Court later rules for Plaintiffs | Such relief would alter status quo and conflict with the Supreme Court’s stay and statutory caps; moot if cap reached | Granted in part: court ordered State Dept. to reserve any unused FY2017 visa numbers for processing after the Supreme Court decision and to report unused numbers by Oct. 15 |
| 3. Whether consular nonreviewability bars judicial relief | Plaintiffs challenge the Department’s policy and applicants’ files are not finally refused; doctrine therefore does not bar review | Doctrine precludes review of consular visa denials and processing timing | Denied: consular nonreviewability does not bar relief because (a) applications appear not finally refused and (b) plaintiffs challenge a policy, not an individual consular discretionary decision |
| 4. Whether mandamus is available to compel processing | Mandamus proper because Plaintiffs have a clear right to processing, consuls have a duty, and no adequate remedy exists given FY deadline | Mandamus is drastic and inappropriate given pending Supreme Court review and possible mootness due to visa cap | Granted in part: mandamus-equitable relief ordered only to the extent of reserving and reporting unused FY2017 visa numbers pending Supreme Court outcome |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard)
- Munaf v. Geren, 553 U.S. 674 (2008) (extraordinary nature of preliminary injunctions)
- Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) (mandamus elements)
- Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (panel opinion addressing Establishment Clause and effects on visa issuance)
- State of Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (panel opinion addressing scope of presidential authority under INA)
- Przhebelskaya v. U.S. Bureau of Citizenship & Immigration Servs., 338 F. Supp. 2d 399 (E.D.N.Y. 2004) (equitable relief ordering processing of visas despite quota/deadline)
- Paunescu v. Immigration and Naturalization Serv., 76 F. Supp. 2d 896 (N.D. Ill. 1999) (mandamus/equitable processing past statutory deadline)
- Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) (mandamus available where visa was provisionally refused and policy challenge permitted)
- Int'l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985) (jurisdiction where challenge attacks agency policy rather than individual consular discretion)