JESSICA NGUYEN, еt al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
Case No. 20-cv-00718 (APM)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
May 18, 2020
MEMORANDUM OPINION AND ORDER
Plaintiffs in this action are a mix of United States citizens, lawful permanent residents, and diversity visa lottery winners, who seek a temporary restraining order preventing Defendants from implementing and enforcing
I.
A.
On April 22, 2020, President Trump signed
As relevant here, the Proclamation suspеnds entry of most immigrants with family-based and diversity visas, subject to certain exceptions not relevant for present purposes. See generally
The diversity visa program, in turn, is an annual process by which individuals from countries with a proportionally small number of immigrants to the United States may apply for immigrant visas.
The Proclamation cites various justifications, rooted in economic harms caused by the COVID-19 pandemic, to justify temporarily suspending еntry of new permanent residents. First among those reasons is to protect unemployed American workers against competition in the labor market from new permanent residents. See
B.
Plaintiffs are family-based visa sponsors (“Family-Based Visa Plaintiffs“) and diversity visa selectees (“Diversity Visa Plaintiffs“). Lead Plaintiff Jessica Nguyen is a United States citizen who, in 2005, filed a family-based immigrant visa petition on behalf of her brother and his family. See First Am. Compl. Class Action for Declaratory & Injunctive Relief, ECF No. 5 [hereinafter Am. Compl.] ¶ 12; Defs.’ Mem. of Law in Opp‘n to Pls.’ Mot., ECF No. 14 [hereinafter Defs.’ Opp‘n], Ex. A., Decl. of Chloe Dybdahl, ECF No. 14-1 [hеreinafter Dybdahl Decl.], ¶ 5. The petition was approved in 2010, but her brother‘s visa application was refused after an interview at the Ho Chi Minh City consular office on October 21, 2019. See Am. Compl. ¶ 12; Dybdahl Decl. ¶ 5. The consular office requested additional documentation from
Plaintiffs Driss Houti, Jaafar Al-Dahwi, Md Zahiduz Zaman, Alberto Petrache, Abdulazeez Abdulazeez, and Chedi Juez Morales—each a United States citizen or a lawful permanent resident—also filed family-based immigrant visa petitions on behalf of family members. See Am. Compl. ¶¶ 13–18; Dybdahl Decl. ¶¶ 6–14. Their family members are all awaiting visa application interviews at consular offices abroad. Zaman‘s and Petrache‘s relatives have submitted all the necessary paperwork for their visa applications, but their interviews were cancelled in late March 2020 due to closures associated with the COVID-19 pandemic. See Dybdahl Decl. ¶¶ 10–12. Abdulazeez‘s and Morales‘s relatives have also submitted their required paperwork, but their interviews have not yet been scheduled. Id. ¶¶ 13–14. Houti recently inquired into changing the classification of his immigrant visa petition for his family members, but there is no indication in the record whether he has filed the required request with USCIS. See id. ¶¶ 6–8. Al-Dahwi‘s relative‘s visa application requires additionаl information, though it appears the consular office has not yet communicated what information is needed. See id. ¶ 9.
Plaintiffs Yuliia Maksymenko, Yevhen Kovalov, Andrei Lykov, Evgenia Lykova, and Milana Lykova are 2020 diversity visa selectees and their derivative beneficiaries. See Am. Compl. ¶¶ 19–20; Dybdahl Decl. ¶¶ 15–16. Their lottery numbers are current, and they have submitted the required paperwork for their visa applications. See Am. Compl. ¶¶ 19–20; Dybdahl Decl. ¶¶ 15–16. They are currently waiting on visa application interviews at consular offices abroad. Dybdahl Decl. ¶¶ 15–16.
The Family-Based Visa Plaintiffs allege that if the Proclamation is allowed to stand, Plaintiffs will be denied the opportunity to reunite with their family members. See Am. Compl. ¶¶ 12–18. The Diversity Visa Plaintiffs separately worry that, “[i]f they do not receive their visas by September 30, 2020, they . . . will lose the benefit of having been selected in the Fiscal Year 2020 lottery and will have to try again.” Id. ¶¶ 19–20; see also id. ¶¶ 117, 120.
C.
On April 27, 2020, Plaintiffs filed a class-action complaint against Defendants President Trump, the United States Department of Homeland Security, Acting Secretary of Homeland Security Chad Wolf, the United States Department of State, and Secretary of State Michael Pompeo. See Am. Compl. ¶¶ 21–25.2 They filed the instant motion for a temporary restraining order the same day. See generally Pls.’ Mot.
Plaintiffs argue that: (1) “the Proclamation violates the Immigration and Nationality Act (‘INA‘), and therefore is contrary to law and ultra vires under the Administrative Procedures Act (‘APA‘)“; (2) “the Proclamation is arbitrary and capricious in violation of the APA“; and (3) “in implementing the Proclamation, [Defendants]
II.
Courts analyze motions for temporary restraining orders using the same standards that apply to preliminary injunctions. See Dunlap v. Presidential Advisory Comm‘n on Election Integrity, 319 F. Supp. 3d 70, 81 (D.D.C. 2018); Sterling Commercial Credit–Mich., LLC v. Phx. Indus. I, LLC, 762 F. Supp. 2d 8, 12 (D.D.C. 2011). These “extraordinary” remedies “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail on such a motion, the movant bears the burden of showing, among other things, “that he is likely to succeed on the merits.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[T]he ‘merits’ on which [a] plaintiff must show a likelihood of success encompass not only substantive theories but also establishment of jurisdiction,” including standing. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (quoting Obama v. Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015) (Williams, J.)).
“To establish standing, a party must demonstrate: ‘(1) an injury in faсt that is concrete and particularized as well as actual or imminent; (2) a causal connection between the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision.‘” Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 76 (D.C. Cir. 2020) (quoting Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1016 (D.C. Cir. 2014)). In the context of a temporary restraining order or preliminary injunction, courts “require the plaintiff to show a substantial likelihood of standing under the heightened standard for evaluating a motion for summary judgment.” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm‘n on Election Integrity (“EPIC“), 878 F.3d 371, 377 (D.C. Cir. 2017) (internal quotation marks and citation omitted). Thus, a plaintiff seeking such extraordinary relief “cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts that, if taken to be true, demonstrate a substantial likelihood of standing.” Id. (cleaned up) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
III.
A.
Plaintiffs’ assertions of standing fail right off the bat because they offer no evidence with their mоtion that they are injured by the Proclamation. In fact, their motion does not even discuss standing, much less supply “specific facts” that establish a substantial likelihood thereof. See EPIC, 878 F.3d at 377 (quoting Lujan, 504 U.S. at 561). Though Plaintiffs’ Amended Complaint includes some discussion of their injuries, see Am. Compl. ¶¶ 12–20, 117, 120, these allegations, unsupported by record evidence, are insufficient to establish standing under the “heightened standard for evaluating a motion
In an attempt to cure this deficiency, Plaintiffs attach to their reply brief the affidavits of Plaintiffs and their family members, which, in broad terms, discuss the hardships these families have experienced as a result of delays and uncertainties associated with their visa applications. See Pls.’ Reply, Ex. 1, ECF No. 19-1 [hereinafter Hardship Affs.]. Unfortunately for Plaintiffs, this evidence, and Plaintiffs’ associated standing arguments, see Pls.’ Reply at 6–12, сome too late. It is well-established that “the ordinary rules of forfeiture apply to standing,” Gov‘t of Manitoba ex rel. Schmitt v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019); see also Huron v. Cobert, 809 F.3d 1274, 1280 (D.C. Cir. 2016), including the “basic precept that arguments generally are forfeited if raised for the first time in reply,” Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 615 (D.C. Cir. 2019); see also Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 147 (D.C. Cir. 2012) (“[W]e are aware of no authority which permits a party to assert an entirely new injury (and thus, an entirely new theory of standing) in its reply brief.“), aff‘d in part, rev‘d in part on other grounds sub nom. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014). This “same principle applies to newly proffered evidence attached to a reply brief.” Patterson v. Johnson, 391 F. Supp. 2d 140, 142 n.1 (D.D.C. 2005) (refusing to cоnsider four affidavits attached to the movant‘s reply brief), aff‘d, 505 F.3d 1296 (D.C. Cir. 2007); see also Nat‘l Parks Conservation Ass‘n v. U.S. Forest Serv., No. CV 15-01582 (APM), 2015 WL 9269401, at *3 (D.D.C. Dec. 8, 2015) (declining to consider three declarations submitted with a reply brief and purporting to establish a plaintiff‘s irreparable harm, when the “Plaintiff easily could have offered such evidence with its” motion for a temporary restraining order). Plaintiffs have identified nothing that would excuse their failure to submit the affidavits and raise their standing arguments with their initial motion, and it would be unfair for the cоurt to address these late additions when Defendants have had no opportunity to respond.
B.
In any event, even if the court were to consider the belatedly submitted affidavits and the assertions of injury made in reply, Plaintiffs’ motion fails for a more essential reason: They have not demonstrated a substantial likelihood of causation and redressability. Plaintiffs’ claimed injuries fall into two buckets: harm from delayed family reunification, and harm from the lost оpportunity to receive diversity visas this fiscal year. See Pls.’ Reply at 10–11; Hardship Affs.; see also 5/14/2020 Hr‘g Tr. at 6–8. Assuming without deciding that these are cognizable injuries in fact, there is no evidence in the record that the harms are traceable to the Proclamation, or that Plaintiffs’ requested relief would redress them.
Causation. To establish causation, a plaintiff must show “a causal connection between the injury and the conduct complained of.” Lujan, 504 U.S. at 560. The injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (cleaned up). Plaintiffs have not adduced any evidence that their injuries are attributable to the Proclamation or its implementation and enforcement, rather than other factors that are unchallenged in this action. For two of
More fundamentally, however, none of the Plaintiffs have shown that either the Proclamation or its implementation has affected them. Indeed, with the exception of Nguyen, Plaintiffs have not identified any actions taken with respect to their applications after the Proclamation was issued on April 22. This is an important oversight because, on the current record, it is not clear how the Proclamation affects Plaintiffs’ and their families’ visa applications, which are all in various stages of processing. The Proclamation suspends the “entry” of certain classes of immigrants; it does not specifically address the processing of visa applications. See
Plaintiffs counter with an email sent to a visa applicant represented by Plaintiffs’ counsel who is not a named plaintiff in this case indicating that at least one embassy has stopped processing visa applications due, in part, to the Proclamation. See Pls.’ Reply, Ex. 2, ECF No. 19-2 (email from the Frankfurt Embassy stating that “under the Presidential Proclamation . . ., we are unable to issue any immigrant visas other than those for spouses and children of U.S. citizens,” and noting that “[w]hen the president lifts the restrictions under the [Proclamation] and we have resumed routine visa operations, we can process your visa application“). But this email only highlights the absence of any similar evidence in this case. Presumably, if Defendants had ceased processing Plaintiffs’ and their families’ visa applications, similar paper trails would exist.
In short, there is no evidence that the Proclamation and its implementation will cause the processing of Plaintiffs’ cases to “come to a screeching halt,” as Plaintiffs contend. Pls.’ Reply at 11. Therefore, at this juncture, the court can only speculate whether the challenged actions have caused, or imminently will cause, the Family-Based Visa Plaintiffs to experience any delay in reuniting with their families, or
Redressability. To establish redressability, a plaintiff must show that it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.‘” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). Causation and redressability are “closely related” concepts, which typically “overlap as two sides of a . . . coin.” Dynalantic Corp. v. Dep‘t of Def., 115 F.3d 1012, 1017 (D.C. Cir. 1997).
Here, Plaintiffs cannot demonstrate that an order “preventing Defendants from implementing or enforcing the Proclamation,” Pls.’ Mot. at 49, is substantially likely to redress their injuries because, as discussed, Plaintiffs have not shown that their injuries are caused by the Proclamation or its implementation. Simply put, the court cannot remedy an injury that is not caused by the challenged action before it. See 13A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.4 (3d ed. 2020) (“[A] remedy addressed to actions that have not caused the injury will not alleviate the injury.“).
There is another reason to doubt whether Plaintiffs’ harms would be redressed by a favorable decision: The State Department has suspended routine visa services worldwide since March 20, 2020, due to the COVID-19 pandemic. See Suspension of Routine Visa Services, U.S. DEP‘T OF STATE–BUREAU OF CONSULAR AFFAIRS (Mar. 20, 2020) [hereinafter March 20 Announcement]4; Defs.’ Opp‘n at 3. While the сontours of that decision are not entirely clear on this record, at a minimum, it appears that “all routine immigrant and nonimmigrant visa appointments” have been cancelled since March 20, 2020. See March 20 Announcement. It appears that this directive is still operative. See
The March 20 Announcement raises doubt as to whether the processing of Plaintiffs’ and their families’ visa applications would proceed even if the Proclamation and its implementation were enjoined. For all Plaintiffs except three—Nguyen, Houti, and Al Dahwi—the next steps in their (or their families‘) visa applications are in-person interviews at United States consular offices abroad. See Dybdahl Decl. ¶¶ 10–16. However, these interviews have either been cancelled as a result of “closures due to COVID-19,” id. ¶¶ 10–12, or have not yet been scheduled, id. ¶¶ 13–16. Given the State Department‘s ongoing directive cancelling “all visa appоintments” until further notice, see March 20 Announcement, the court cannot conclude on this record that an order enjoining the Proclamation and its implementation would make it any more likely (much less substantially likely) that these Plaintiffs and their family members would be able to schedule and proceed with their needed interviews.
Family-Based Visa Plaintiffs Nguyen, Houti, and Al Dahwi are situated somewhat differently. As discussed above, Nguyen‘s and Houti‘s family members’ visa apрlications currently require additional information before they can be processed. See Dybdahl Decl. ¶¶ 5–8. A favorable decision here cannot remedy those issues. For Al Dahwi‘s relative‘s visa application, however, the ball is in Defendants’ court. Al Dahwi‘s relative‘s initial visa application was refused, and Defendants have indicated that the “consular section will contact [Mr. Al Dahwi‘s relative] when they are
* * *
In sum, Plaintiffs have not demonstrated a “substantial likelihood of standing under the heightened standard for evaluating a motion for summary judgment.” EPIC, 878 F.3d at 377 (internal quotation marks and citation omitted). Plaintiffs’ failure tо do so “requires denial” of their motion for temporary restraining order. See Food & Water Watch, 808 F.3d at 913. It does not require dismissal of the case, however. Id. The court does not foreclose the possibility that Plaintiffs may successfully establish their standing at later stages in this litigation.
IV.
For the foregoing reasons, the court denies Plaintiffs’ Motion for Temporary Restraining Order, ECF No. 6.
Dated: May 18, 2020
Amit P. Mehta
United States District Court Judge