567 F.Supp.3d 180
D.D.C.2021Background
- Plaintiffs are 60 selectees of the 2021 Diversity Visa (DV) lottery and 107 derivative beneficiaries living in countries covered by Presidential Proclamations that restricted entry during COVID-19.
- From March–September 2020 into early 2021 the State Department interpreted those Regional Proclamations to suspend issuance and processing of diversity visas; the Kentucky Consular Center (KCC) paused scheduling DV interviews and largely did not process DVs for ~six months.
- On April 8, 2021 the Secretary of State announced a national-interest exception restarting immigrant visa processing, but a backlog persisted and many plaintiffs were unlikely to receive interviews before the DV fiscal-year cutoff of September 30, 2021.
- Plaintiffs sued alleging APA violations (policy contrary to law, arbitrary and capricious, unreasonable delay/unlawful withholding, notice-and-comment failures), Mandamus Act relief, and constitutional separation/nondelegation claims; they sought a preliminary injunction to process visas and preserve visa numbers.
- The government moved to dismiss for lack of jurisdiction and opposed injunctive relief; the court granted in part and denied in part both motions, dismissing some claims and plaintiffs but granting preliminary relief on core APA and delay/withholding claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Justiciability | Plaintiffs (e.g., Klimiankova) suffered concrete, imminent injury from withheld adjudication and risk of losing DV eligibility before Sept 30. | Govt: no concrete injury, claims moot or not redressable; challenges to presidential exclusion authority non-justiciable. | Court: at least some plaintiffs have standing; claims justiciable. Twenty-two plaintiffs whose visas already issued were dismissed as moot. |
| Authority to suspend DV processing (contrary to law / excess of statutory authority) | State Dept lacked statutory or regulatory authority to suspend processing/adjudication of DVs; INA mandates consular review/adjudication. | Govt: statutes permit broad discretion; §1153(e)(2) governs visa numbers/lottery. | Court: Plaintiffs likely to succeed; policy exceeded statutory authority and was contrary to law. |
| Arbitrary & capricious APA claim | Policy lacked reasoned explanation and failed to consider consequences on DV selectees. | Govt did not meaningfully rebut rationale. | Court: Plaintiffs likely to succeed; treated govt response as conceded on this point. |
| Unreasonable delay / unlawful withholding | Six-month suspension unreasonably delayed mandated adjudication and amounted to unlawful withholding of discrete agency action. | Govt cites COVID-19 operational constraints and resource prioritization. | Court: TRAC factors favor Plaintiffs; likely unlawful unreasonable delay and withholding. |
| Notice-and-comment rulemaking | Suspension/policy implemented without notice-and-comment; invalid rulemaking. | Govt: now exempted plaintiffs; relief moot. | Court: claim moot because national-interest exception restarted processing. |
| Mission‑critical / emergency guidance exclusion | Excluding DVs from mission-critical categories unlawfully deprived plaintiffs of services. | Govt: guidance permitted phased resumption; later guidance replaced it. | Court: claim dismissed as moot/without effect on present injunctive relief. |
| National‑interest exception implementation (raised in PI motion) | Implementation was final agency action and arbitrary/capricious. | Govt: Plaintiffs did not raise this in complaint; relief disallowed by mismatch. | Court: challenge not pleaded in complaint; dismissed for failure to state claim. |
| Mandamus relief | Plaintiffs entitled to mandamus to compel adjudication. | Govt: APA §706 remedies available; mandamus standards not met. | Court: Denied mandamus; APA remedy suffices. |
| Separation of powers / nondelegation | Proclamations usurp Congressional/INA allocation of authority. | Govt: Presidential §1182(f) authority is broad and constitutional (Trump v. Hawaii). | Court: Dismissed these constitutional claims for failure to state a claim. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for federal plaintiffs)
- Trump v. Hawaii, 138 S. Ct. 2392 (deference to Presidential exclusion power under §1182(f))
- Gomez v. Trump, 485 F. Supp. 3d 145 (D.D.C. 2020) (challenge to suspension of DV processing; relevant precedent)
- Almaqrami v. Pompeo, 933 F.3d 774 (agency obligation to process visa applicants)
- Smirnov v. Clinton, 806 F. Supp. 2d 1 (D.D.C. 2011) (standing based on lost opportunity to have visas adjudicated)
- In re People’s Mojahedin Org. of Iran, 680 F.3d 832 (D.C. Cir. 2012) (delay/mandamus/TRAC analysis)
- TRAC v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (factors for assessing unreasonable delay)
- Moghaddam v. Pompeo, 424 F. Supp. 3d 104 (D.D.C. 2020) (consular nonaction reviewable under APA)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (preliminary injunction standard)
- Nken v. Holder, 556 U.S. 418 (balance of equities/public interest when government is party)