TATE v. POMPEOTATE v. POMPEO
Plaintiffs in this case are eighteen applicants for nonimmigrant O-1 and O-3 visas, which would allow them to enter the United States to further their professional careers in areas where they possess “extraordinary ability,” or as family members of such individuals. The COVID-19 pandemic has disrupted the visa application and interview process, creating challenges both for foreign nationals wishing to travel to the United States and for the diplomatic posts responsible for processing visa applications. Plaintiffs have been unable to obtain visas, in part because the State Department has interpreted broadly certain Presidential Proclamations that forbid entry of individuals who were in certain designated countries within fourteen days of their attempted entry into the United States, as prohibiting the Department from issuing visas to individuals residing in those designated countries.
Plaintiffs have brought this suit to challenge the State Department’s visa policy as unlawful and to compel resumption the adjudication of their visas. To this end, they have moved for a preliminary injunction to enjoin the State Department’s visa-issuance suspension as contrary to the Administrative Procedure Act (“APA”),
The Court agrees with plaintiffs—and the decisions of two other Judges in this district—that the State Department has acted unlawfully in suspending O-visa processing based on the Presidential Proclamations, which pertain only to entry, but defendants prevail on the delay claim. Plaintiffs’ motion for a preliminary injunction is therefore granted in part and denied in part.
I. BACKGROUND
Provided below is an overview of the O-visa program through which plaintiffs seek to enter the country, and a description of the Presidential Proclamations and relevant State Department policies, followed by a summary of the procedural history of this action.
A. O Visa Program
The Immigration and Nationality Act (“INA”) provides a nonimmigrant visa category for qualified individuals who “[have] extraordinary ability in the sciences, arts, education, business, or athletics . . . and [who] seek[] to enter the United States to continue work in the area of extraordinary ability.”
In response to the COVID-19 pandemic, the President issued five Presidential Proclamations, each containing similar provisions suspending the entry of certain immigrants and nonimmigrants from specific countries experiencing significant COVID-19 outbreaks. See 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 each Proclamation, the President relied on
On March 20, 2020, the State Department directed all U.S. embassies and Consulates to “suspend all routine visa services due to the COVID-19 pandemic.” Am. Compl., Ex. A-1 (“March 20 DOS Guidance”) ¶ 1, ECF No. 7-1; see also Defs.’ Mem. in Opp’n to Pls.’ Mot for Preliminary Injunction (“Defs.’ Opp’n”), Ex. A, Decl. of Brianne Marwaha (“Marwaha Decl.”) ¶ 2, ECF No. 11-1. For the next few months, foreign posts offered only “mission critical or emergency services,” which included certain categories of nonimmigrant visas and a discretionary category for “mission critical purposes of travel as determined on a case-by-case basis by post management,” but did not include O visas. Am. Compl., Ex. A-3 (“Apr. 28 DOS Guidance”), ECF No. 7-3; Marwaha Decl. ¶¶ 2–3. On July 8, 2020, the State Department notified diplomatic and consular posts of a phased resumption of routine visa services starting on July 15, 2020, and issued instructions for reopening through a program called “Diplomacy Strong.” Am. Compl., Ex. A-3 (“July 8 DOS Guidance”) ¶ 1, ECF No. 7-6. That guidance indicated that in countries affected by the Presidential Proclamations, “[v]isa processing remains restricted to emergency or mission critical only,” and exceptions to the Presidential Proclamations may also be used as a guide for additional mission-critical or emergency travelers.” Id. ¶ 10. Routine appointments to process O visas would not resume until conditions improved and a post moved on to “Phase Two” of the reopening plan. Id. ¶ 11. Since services resumed, the State Department represents that its capacity to process visas has “significantly decreased” due to the pandemic. Defs.’ Opp’n, Ex. B, Decl. of Brenda L. Grewe (“Grewe Decl.”) ¶¶ 3–4, ECF No. 11-2. From July 15, 2020 through September 30, 2020, for example, only around 10 percent of the number of visa applications processed in previous years were adjudicated. Id. ¶ 3.
The State Department has refused, however, to issue O visas to individuals in Proclamation-designated countries who do not otherwise qualify for a national interest exception. The July 8, 2020 Guidance indicates that at “All Posts Impacted by a [Regional] Presidential Proclamation,” “visa processing remains restricted to emergency or mission critical only.” July
Visa processing remains limited around the world due to COVID-19 restrictions, including limits on public gatherings, imposed by host governments, Marwaha Decl. ¶ 8, and limited post staffing because of COVID-19 illness and quarantine, id. For example, the U.S. Embassy in London has only been engaging in “[l]imited visa processing” since December 7, 2020, and all diplomatic posts in China have yet to resume the phased resumption of visa processing. Id.
D. Procedural History
Plaintiffs filed this suit on November 10, 2020, ECF No. 1, and then filed an amended complaint on December 4, 2020, ECF No. 7. Plaintiffs contend that the State Department’s reliance on the Presidential Proclamations to suspend visa processing in the relevant countries is
Plaintiffs are fifteen O-1 visa applicants and three O-3 visa dependents whose applications are at various stages in the application process. Am. Compl. ¶¶ 21–36. All have approved I-129 petitions. Id. ¶ 20. Three have had their visa interviews and had their visas refused, under
On December 4, 2020, plaintiffs moved for a preliminary injunction. Plaintiffs make a number of overlapping APA claims, but at core they argue that the State Department’s actions in implementing the Presidential Proclamations to suspend or refuse issuance of visas for O-visa applicants violates § 706(2) of the APA and that defendants’ actions in delaying the processing of plaintiffs’ visa applications violates § 706(1) of the APA.2 Plaintiffs request “an order from the Court requiring Defendants to immediately reinitiate processing of the named Plaintiffs,
II. LEGAL STANDARD
A preliminary injunction “is a stopgap measure, generally limited as to time, and intended to maintain a status quo or ‘to preserve the relative positions of the parties until a trial on the merits can be held.’” Sherley v. Sebelius, 689 F.3d 776, 781–82 (D.C. Cir. 2012) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). To obtain relief, the moving party must establish that (1) they are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities” is in their “favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016); Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016). The first factor is also the “most important factor.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); see also Munaf v. Geren, 553 U.S. 674, 690 (2008) (“[A] party seeking a preliminary injunction must demonstrate, among other things, ‘a likelihood of success on the merits.’” (quoting Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006))).3 A preliminary injunction “is an extraordinary . . . remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion” on each of the four factors. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted)
III. DISCUSSION
Plaintiffs’ claims for relief fall into two categories. First, they argue that the State Department’s policy suspending the issuance of O visas to applicants in Proclamation-designated countries is unlawful because it is not in accordance with law, arbitrary and capricious, and in excess of statutory authority. See
A. Threshold Issues
Defendants make two threshold arguments regarding the reviewability of agency action. First, they argue that the doctrine of consular nonreviewability precludes three plaintiffs from challenging the refusals of their visa applications. Second, defendants argue that all plaintiffs lack a cause of action under the APA to challenge the State Department’s implementation of the Presidential Proclamations.
As to their first argument, defendants argue that the three plaintiffs whose visa applications have been denied, see Paterson Decl. ¶¶ 2–4, cannot demonstrate a likelihood of success on the merits because the doctrine of consular nonreviewability vests the ultimate authority to issue or refuse visa applications in the consular officer. Defs.’ Opp’n at 26–27.
Plaintiffs respond that the doctrine does not apply—and thus judicial review is available—where plaintiffs challenge the State Department’s policies rather than the individual determination of a consular officer. Pls.’ Reply at 11. The Court agrees. The D.C. Circuit has held that the consular non-reviewability does not apply where plaintiffs “do not challenge a particular determination in a particular case of matters which Congress has left to executive discretion” but instead improperly promulgate rules in violation of statute. Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985). This precedent has been applied in this district to allow challenges to the legality of State Department policies—and their application—without implicating the discretionary decisionmaking of individual consular officers. P.K. v. Tillerson, 302 F. Supp. 3d 1, 12 (D.D.C. 2017) (“[T]he doctrine of consular non-reviewability does not apply because Plaintiffs challenge the State Department’s policy, not the discretion of a specific consular officer in applying the policy.”). This reasoning applies with full force here, where defendants themselves confirm that the three plaintiffs were
Second, defendants argue that executive agency actions taken “to implement a Presidential proclamation, pursuant to discretionary authority that was committed to the President, are unreviewable under the APA.” Defs.’ Opp’n at 32; see also Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (presidential actions “not subject to [the APA’s] requirements”). This attempt to bootstrap the nonreviewability of presidential actions to discretionary authority delegated to the State Department does not have support in precedent. The D.C. Circuit has expressed doubt that regulations promulgated by an executive agency to “flesh out” an executive order would be unreviewable simply because they are based on an executive order. Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996); see also Public Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C. Cir. 1993) (“Franklin is limited to those cases in which the President has final constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties.”); Gomez v. Trump, Civil Action No. 20–1419 (APM), 2020 WL 5367010, at *16 (D.D.C. Sept. 4, 2020) (“To the extent Defendants contend that the court is foreclosed from reviewing agency actions taken to implement Proclamations, they are wrong.” (Emphasis omitted)).
Defendants rely only on Detroit International Bridge Co. v. Government of Canada, 189 F. Supp. 3d 85 (D.D.C. 2016), aff’d on other grounds, 875 F.3d 1132 (D.C. Cir. 2017) (subsequent history omitted), to support their position. Defs.’ Opp’n at 32–33. In that case, the district court determined that the State Department’s issuance of a bridge permit was unreviewable under the APA. Detroit Int’l Bridge Co., 189 F. Supp. 3d at 100–02. That case is readily distinguishable and articulates a much more modest position than what defendants
Here, plaintiffs do not allege that the State Department’s actions are ministerial, but rather that those actions expanded the scope of the Presidential Proclamations by adding a restriction on the issuance of visas to the Proclamations’ restriction on entry. The Proclamations provide that “[t]he Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish.” E.g., Proclamation No. 9984, 85 Fed. Reg. at 6711 (Section 3). The means by which the Secretary implements the Proclamations are therefore within the discretion of the Secretary, are not dictated by the Proclamations themselves, and require the Secretary to exercise judgment. Defendants may argue that they are required to implement the Proclamation in a certain way, Defs.’ Opp’n at 34, but this is just a restatement of the merits argument, and defendants cannot rely on a disputed interpretation of the statute to evade judicial review of the agency’s implementation of the Proclamations.5
1. O-Visa Suspension and 8 U.S.C. § 1182(f)
Plaintiffs challenge the State Department’s reliance on the Presidential Proclamations and
Plaintiffs argue that
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants . . . .
This position has been adopted, in thoroughly reasoned decisions, by two other Judges in this District, who have granted preliminary injunctions stemming from similar challenges to the State Department’s interpretation of § 1182(f) to preclude the issuing of visas to other categories of visa applicants. Milligan, 2020 WL 6799156, at *7; Gomez, 2020 WL 5367010, at *27–28.
Defendants respond that “[c]onsular officers are required to refuse visas to persons subject to a Presidential Proclamation imposing entry restrictions pursuant to § 1182(f) unless the applicant is found eligible for an exception or waiver,” so the State Department’s policy of suspending visa issuance is required by law to implement the Presidential Proclamations. Defs.’ Opp’n at 13–14 (emphasis added). This argument is predicated on
This reading is contrary to the text and structure of § 1182. The consequences of ineligibility described in § 1182(a) are irrelevant to the interpretation of § 1182(f) because the latter is not a “paragraph” of the former but rather an entirely separate subsection. Section 1182(a) applies to specific “classes of aliens” described in ten paragraphs within that subsection. Its application begins and ends there, and the provision does not render inadmissible classes of aliens described elsewhere in the statute. See Pls.’ Reply at 2–4. As Judge Mehta concluded in Gomez, “[s]ection 1182 of the INA carefully distinguishes between subsections, which include §§ 1182(a) and 1182(f), and paragraphs, which are subunits of those subsections,” so § 1182(a)’s use of “the following paragraphs,” references “only the ten paragraphs of § 1182(a).” 2020 WL 5367010, at *27. Because § 1182(f) concerns itself only with entry, a person subject to a Presidential Proclamation relying on § 1182(f) is only ineligible to enter, but not ineligible for a visa. Id. “Subsection 1201(g) precludes the issuance of visas only as to person who are ‘ineligible to receive a visa’ under Section 1182, not to persons who are only ineligible to enter under that provision.” Id. (emphasis omitted). In Milligan, Judge Boasberg adopted this analysis of § 1182(f) with respect to a different group of visa applicants. 2020 WL 6799156, at *6. The Court finds the analysis persuasive and adopts it here.
Defendants further suggest that plaintiffs’ interpretation of § 1182(f) would put it in conflict with two other statutory provisions. First, they point to
A visa recipient subject to one of the Presidential Proclamations would violate § 1185(a) by immediately attempting entry but would not be subject to the entry restriction if she (1) quarantined in a non-affected country before attempting entry or (2) waited until the Proclamation expired before attempting entry. After all, “[o]btaining a visa from an American consul has never guaranteed an alien’s entry into the United States[, but instead] merely gives the alien permission to arrive at a port of entry and have an immigration officer independently examine the alien’s eligibility for admission.” Saavedra Bruno, 197 F.3d at 1157 (citing
Second, defendants point to a statute requiring consular officers to certify when issuing a visa “that a check of the Automated Visa Lookout System, or any other system or list which maintains information about the excludability of aliens under the [INA] has been made and that there is no basis under such system for the exclusion of such alien.” Defs.’ Opp’n at 15 n.6
Putting aside the statute, defendants next point to the State Department’s historical practice of refusing visas to applicants subject to a presidential proclamation barring entry. Defs.’ Opp’n at 15–19. According to defendants, the State Department’s Foreign Affairs Manual explicitly lists coverage under a presidential proclamation pursuant to § 1182(f) as a “ground[] for refusal.” 9 FAM 301.4-1(a). Defendants also cite instances where the State Department has implemented presidential proclamations limiting the entry of certain aliens by suspending the issuance of visas. See, e.g., 9 FAM 301.14-10(B)(1), (2) (identifying nationals subject to Proclamation 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017), and Proclamation 9983, 85 Fed. Reg. 6699 (Jan. 31, 2020), for whom “issuance of visas . . . is suspended.”). Past visa statistics confirm that “consular officers have regularly refused immigrant and nonimmigrant visa applications pursuant to entry restrictions under § 1182(f)” in the years before the Presidential Proclamations at issue here. Defs.’ Opp’n at 17–18 (citing U.S. Dep’t of State, Bureau of
Defendants next contend that Trump v. Hawaii, 138 S. Ct. 2392 (2018), and various cases within this district, support the proposition that aliens subject to an entry restriction under § 1182(f) are ineligible for visas. Defs.’ Opp’n at 14, 18 & n.7. None of these cases, however, directly addresses the relationship between “entry” under § 1182(f) and visa eligibility. As plaintiffs point out, Trump v. Hawaii “made no broad announcement that a proclamation suspending entry under § 1182(f) equates to a suspension of visa issuance generally,” and that case involved a challenge to the proclamation itself rather than the implementation of a proclamation. Pls.’ Reply at 5–6 (emphasis in original).
Defendants have identified no applicable statutory authority permitting the State Department to suspend visa processing on the basis of the entry restrictions provided by the Presidential Proclamations. Persons subject to the Presidential Proclamations are not ineligible to receive visas under §§ 1182(f) and 1201(g), so plaintiffs are likely to succeed on the merits in their claim that the suspension and refusal of O visa processing is “not in accordance with law” and “in excess of statutory . . . authority.”
C. Unreasonable Delay
Plaintiffs also bring an unreasonable delay claim under § 706(1) that applies both to the plaintiffs covered by the Proclamations, Am. Compl. ¶¶ 21–34, 36, and the one plaintiff located outside the Proclamation-designated countries, id. ¶¶ 35. They contend that “the Department of State has failed to adjudicate and issue O visas for the plaintiffs within a reasonable time,” so the
The APA requires agencies to “proceed to conclude a matter presented to [them]” in a “reasonable time,”
- the time agencies take to make decisions must be governed by a rule of reason;
- where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare
TRAC, 750 F.2d at 80 (internal quotations and citations omitted). The first factor is the most important. See In re Core Commc’ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 63–64 (2004); Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).7
The first and second TRAC factors are considered together and are neutral. Defendants state that there is “no statutory or regulatory timetable governing the issuance of O visas,” Defs.’ Opp’n at 24, and plaintiffs do not suggest otherwise. “Absent a congressionally supplied yardstick, courts typically turn to case law as a guide,” Sarlak v. Pompeo, Civil Action No. 20–35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020), and “Congress has given [the State Department and other agencies] wide discretion in the area of immigration processing.” Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017). “There is ‘no per se rule as to how long is too long’ to wait for agency action,’” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (quoting In re Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). Whether a “rule of reason” exists for agency action “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003).
Defendants explain that the delay in processing plaintiffs’ visa applications is a function of “the Secretary of State’s decision to reduce consular processing [in order to] protect the health of consular officers and the public” in light of the COVID-19 pandemic. Defs.’ Opp’n at 24
Plaintiffs raise valid concerns about the reasonableness of the rules governing the State Department’s actions, which largely overlap with their first merits claim. Certainly, for the reasons set out, supra, in Part III. B., the State Department’s suspension of O visa issuance on the basis of the Presidential Proclamations is not “reasonable” or lawful, and is addressed by relief on plaintiffs’ § 706(2) claim. Plaintiffs’ concern about visa prioritization (i.e., exclusion from the list of “mission critical” functions) is a separate issue, as to which defendants note that the number of O visas adjudicated has been steadily rising since consular operations started to resume. Grewe Decl. ¶ 5. For the single plaintiff who appears to be unaffected by the Presidential Proclamations, see Am. Compl. ¶ 35, and who has been waiting seven months for her visa to be adjudicated, plaintiffs present no facts indicating that the State Department’s prioritization has caused the relevant delay. Further, neither the complaint nor plaintiffs’ briefing provides any information about the status of visa processing in the relevant country (Australia).
Plaintiffs’ wholesale reliance on agency prioritization in arguing that agency decisionmaking lacks a “rule of reason” creates tension with the fourth TRAC factor, which looks to “the effect of expediting delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. This factor often carries significant weight, see Mashpee
Defendants face an extraordinary backlog of visas across the world, Defs.’ Opp’n at 25, processing visas at less than 11 percent of normal capacity from July 15, 2020 to September 30, 2020, Grewe Decl. ¶ 3, and processing nonimmigrant visa applications at less than 16 percent of normal capacity in November 2020, id. ¶ 4. Given this backlog and the continued suspension of routine operations around the world due to the pandemic, defendants correctly posit that deference to the State Department’s priority-setting and prioritization of “mission critical” functions is necessary. Defs.’ Opp’n at 25. Plaintiffs respond that because their number is small, expeditiously processing their applications “would not displace other competing priorities.” Pls.’ Reply at 9. By this logic, however, any individual plaintiff or small group of plaintiffs could
The third and fifth factors consider whether “human health and welfare are at stake” and the “nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80. Plaintiffs have been separated from friends, family, and loved ones, which has taken an emotional toll. E.g., Notice of Errata, Ex. 1 at 7 (Affidavit of Colin O’Riordan); id. at 5 (Affidavit of Hui Qi). The delays in some cases endanger plaintiffs’ careers and livelihoods. E.g., id. at 2 (Affidavit of Wenli Yan). Defendants do not argue otherwise but emphasize that the policies plaintiffs challenge have been taken to protect “the health and welfare of U.S. mission staff and the public.” Defs.’ Opp’n at 25. This point is well-taken, but the nature of plaintiffs’ interests and the prejudice to those interests from delay in processing their visas, still weigh in their favor.
The sixth and final factor weighs in defendants’ favor. “[T]he court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’” TRAC, 750 F.2d at 80. Here, however, “the good faith of the agency in addressing the delay weighs against” relief. See Liberty Fund, Inc., 394 F. Supp. 2d at 120 (citing In Re Am. Fed’n of Gov’t Employees, 837 F.2d 503, 507 (D.C. Cir. 1988)). Plaintiffs are frustrated that defendants have continued to employ policies that courts have enjoined as to other plaintiffs, but do not allege any impropriety.
The Court sympathizes with plaintiffs concerns—the delays in visa processing are keeping them from pursing their careers and, in some cases, reuniting with family. Many other individuals are in similarly trying circumstances, however, and defendants face challenges in
D. Remaining Preliminary Injunction Factors
A party seeking a preliminary injunction must show both irreparable harm and that the balance of the equities, including the public interest, favors relief. These factors are examined below with respect to plaintiffs’ § 1182(f) claim on which they have shown a likelihood of success on the merits.
1. Irreparable Harm
A party seeking a preliminary injunction must show that its injury is “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation marks and emphasis omitted) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The injury must also be “both certain and great,” and be “beyond remediation.” Id.
Plaintiffs argue that they “will no longer be able to pursue a nonimmigrant visa or entry into the United States without an immediate injunction.” Pls.’ Mot. at 33. Furthermore, they contend that defendants’ implementation of the Proclamations has led to “economic frustration, certain job loss, and separation of families.” Id. Some plaintiffs have been unable to start or continue working at jobs in the United States. E.g., Affidavit of Wenli Yan; Pls.’ Mot, Ex. A at 20 (Affidavit of Zoe Hutton), ECF No. 8-1. Others have been separated from family and loved ones. E.g., Affidavit of Hui Qi. Still others have experienced both personal harms and professional risks that threaten their employment and livelihood. Pl.’s Mot., Ex. A at 13 (Affidavit of Arsha Nagrani). Separation from family and the kind of severe, unrecoverable
Defendants contest plaintiffs’ irreparable harm showing on several grounds, none of which has merit. First, defendants point out that the Secretary of State’s determination to suspend the adjudication of their O-visa applications or a consular officer’s refusal because they are inadmissible under § 1182(f) does not affect their future eligibility to seek an O visa. Defs.’ Opp’n at 35. This is irrelevant. Plaintiffs may be able to pursue a visa, but as long as the unlawful policy is in effect, they will not be granted a visa, which is the salient outcome, and that harm will persist as long as the policy remains in place.
Second, defendants argue that plaintiffs’ separation from their families is not a cognizable harm because statutory limits on other visa categories create a backlog and prolong separation between other visa applicants and their families. Defs.’ Opp’n at 35–36. The fact that other people entirely unrelated to this suit face similar harms because of a statutory provision unrelated to this action is irrelevant, since the focus is on whether plaintiffs are being harmed by an unlawful State Department policy.
Third, defendants argue that plaintiffs have not shown that their alleged harm is “both certain and great” by not providing “evidence that a consular officer will make a positive determination for each and every Plaintiff regarding the merits of their visa application.” Defs.’ Opp’n at 36 & n.10. At the same time, defendants suggest no reason that adjudication of plaintiffs’ visa applications would fail to result in issuance of the visas, particularly since plaintiffs’ initial petitions with USCIS have already been approved.
In sum, defendants present no serious reason to doubt the irreparable harms plaintiffs allege.
2. Balance of the Equities and Public Interest
In determining whether to grant a preliminary injunction “courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted) (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). “In exercising their sound discretion, courts . . . should [also] pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. (quoting Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982)). In cases where the government is the non-movant, these factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009).
Defendants hypothesize that various “practical problems” would result if consular officers were required to issue visas to plaintiffs with an “annotation” “indicating that the alien is barred from admission” if entry is attempted without complying with the conditions of the Presidential Proclamations. Defs.’ Opp’n at 37. In defendants view, granting plaintiffs’ motion would effectively make compliance with the Proclamations impossible, stating:
[T]here would no longer be any means by which the U.S. government could monitor whether the now-visa holder complies with the conditions of the Proclamation; it would be left to the airlines to determine when the applicant seeks to board whether the applicant has complied with the 14-day quarantine requirement or, as a last resort, to the Department of Homeland Security and Customs and Border Protection at the border, who may have to turn the alien around if they determine that they remain inadmissible under the Proclamations.
Id. at 37–38.10
These alleged practical problems are not as significant as defendants allege. Independent inspection of aliens at the point of entry in the United States is an integral part of the immigration system. The Supreme Court contemplated just this situation in Trump v. Hawaii, noting that even when a “consular officer issues a visa,” that “visa does not entitle an alien to enter the United States ‘if, upon arrival,’ an immigration officer determines that the applicant is ‘inadmissible under [the INA], or any other provision of law’—including § 1182(f).” 138 S. Ct. at 2414 (quoting
The risk of illegal entry hypothesized by defendants is therefore negligible and cannot outweigh plaintiffs’ interest—and the public interest—in being reunited with their families and avoiding serious economic hardship. See Leiva-Perez, 640 F.3d 962 at 969–70 (citing Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc)) More fundamentally, there is a “substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations” and “generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks and citation omitted). The balance of the equities and public interest weigh in favor of plaintiffs.
E. Relief
Plaintiffs request “an order from the Court requiring Defendants to immediately reinitiate processing of the named Plaintiffs, . . . scheduling and conducting interviews, adjudicating visa applications, issuing visas, and reissuing visas to those whose visas have expired.” Pls.’ Reply at 19. Defendants argue that the Court should instead only require “periodic update[s] on the status of Plaintiffs’ visa processing,” Defs.’ Opp’n at 38–39, stating that such relief is consistent with the relief offered in this Circuit under similar circumstances, id. at 40–41 (citing Cobell v. Norton, 240 F.3d 1081, 1108–09 (D.C. Cir. 2001)). In Cobell, the D.C. Circuit affirmed a district court order requiring the defendant agencies to “come into compliance with their duties” in further proceedings, combined with periodic status reports to facilitate judicial monitoring. 240 F.3d at 1094. That must be part of the injunctive relief here, too, because the State
The Court will not, however, grant the entirety of the injunctive requested by plaintiffs, such as requiring defendants to “immediately reinitiate processing” of plaintiffs’ visa applications and taking various specific actions to that end. Plaintiffs have demonstrated a likelihood of success on the merits in establishing that the State Department’s outright refusal issue O visas to applicants in Proclamation countries is not in accordance with law, and the scope of the injunction is limited to remedying that injury.
IV. CONCLUSION
Plaintiffs have shown that a preliminary injunction is warranted on their claim that defendants’ implementation of the Presidential Proclamations under § 1182(f) to suspend issuance of O visas in Proclamation-designated countries violates the APA, and the State Department is enjoined from relying on the Presidential Proclamations to suspend or refuse visa adjudications for those plaintiffs covered by the Proclamations. Defendants will be directed to provide monthly updates, with detailed information from knowledgeable personnel, on the status of plaintiffs’ O-1 and O-3 visa applications throughout the pendency of this case until resolved.
The Court will issue contemporaneously with this Memorandum Opinion an Order granting in part and denying in part plaintiffs’ Motion for a Preliminary Injunction.
Date: January 16, 2021
BERYL A. HOWELL
Chief Judge