UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) DINESH BADE et al., ) ) Plaintiffs, ) ) v. ) Case No. 21-cv-01678 (APM) ) DEPARTMENT OF STATE et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER
Plaintiffs are selectees of the 2020 and 2021 Diversity Visa (“DV”) programs who wish to
complete the interview component of their DV applications via videoconference. 1 Pls.’ Request
for a Prelim. Inj., ECF No. 3 [hereinafter Pls.’ Br.], at 11–12. They seek to enjoin Defendants
from requiring that interviews of DV applicants take place in person, arguing that the in-person
interview requirement violates the Administrative Procedure Act (“APA”), the Due Process Clause
of the Fifth Amendment, and the Government Paperwork Elimination Act. Id. at 14. Because
Plaintiffs have not demonstrated that they have standing or that they are likely to succeed on the
merits, the court denies their motion.
I.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In addition, “a party who seeks a preliminary
1 Plaintiffs have represented that only the DV 2021 selectees bring this preliminary injunction motion. See Pls.’ Request for a Prelim. Inj., ECF No. 3, at 11. injunction must show a substantial likelihood of standing.” Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 913 (D.C. Cir. 2015) (cleaned up).
II.
Plaintiffs argue that they “have standing to seek an injunction as they are at continuing risk
of future illegal conduct” based on Defendants’ refusal to permit applicants to complete interviews
via videoconference. Pls.’ Br. at 14. Plaintiffs appear to assert that they are at risk of suffering
two injuries: (1) that their visas will not be finally adjudicated because Defendants’ COVID-19
protocols limit their capacity to conduct in-person interviews, see id. at 13–14; and (2) that
appearing for in-person interviews may expose applicants to COVID-19, see Pls.’ Resp. to Defs.’
Mot. to Dismiss & Reply in Supp. of Request for a Prelim. Inj., ECF No. 13 [hereinafter Pls.’
Reply], at 10. Under the law of this Circuit, plaintiffs who argue that they face an increased risk
of harm must show that the defendants’ actions “substantially increased” the risk that a specific
plaintiff will face harm and demonstrate “a substantial probability” that the plaintiff will suffer
“harm with that increase taken into account.” Food & Water Watch, 808 F.3d at 914 (internal
quotation marks omitted). Plaintiffs may not “aggregate a series of remote and speculative claims”
to establish standing and must identify a “particular individual” who will be harmed. See Pub.
Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1293–94 (D.C. Cir. 2007).
Both of Plaintiffs’ asserted increased-risk injuries fail because Plaintiffs have not
established that any one among them will suffer the injuries imminently. See id. (noting an
“imminence problem arises” when “no one can say who” specifically in a group will suffer an
injury). First, as to the increased risk that Plaintiffs’ DV applications will not be adjudicated,
Plaintiffs have not identified any individual Plaintiff who likely would have had their DV
application adjudicated if not for the in-person interview requirement. Instead, they impermissibly
2 rely on the likelihood that, in the aggregate, some number of them are substantially likely to not
have their DV applications adjudicated if they are required to appear in person. See Pls.’ Br.
at 13–14. Plaintiffs therefore have not adequately demonstrated that they are substantially likely
to have standing. Food & Water Watch, 808 F.3d at 914.
Second, as to Plaintiffs’ increased risk of contracting COVID-19, Plaintiffs again have not
identified any facts showing that any individual Plaintiff faces a substantial risk of contracting
COVID-19 because of the in-person interview requirement. They identify three Plaintiffs who
will need to travel to complete their in-person interviews, and they assume these Plaintiffs face a
risk of infection based on the assertion that “the deadly Delta variant is raging in Europe.” Pls.’
Reply at 10. But Plaintiffs have offered just a couple statistics about the global death toll from the
COVID-19 pandemic and the cumulative case count in Poland as support for the risk that Plaintiffs
face. See id. This evidence is insufficient to show that there is a substantial probability that any
individual Plaintiff will contract COVID-19 if they travel to complete their interview. See Food
& Water Watch, 808 F.3d at 914. Based on this evidence, the court cannot conclude that Plaintiffs
have demonstrated a substantial likelihood of standing.
III.
Even if this court were to conclude that Plaintiffs have standing, their motion would still
fail because they have not shown that they are likely to succeed on the merits of their claims under
the APA or the Due Process Clause or on their claim that the in-person interview requirement is
ultra vires.
First, Plaintiffs are unlikely to demonstrate that the in-person interview requirement for
immigrant visa applicants violates the APA. Congress delegated the particular “form and manner”
that immigrant visa applications must take to the Department of State. See 8 U.S.C. § 1202(a). It
3 further required that, “[e]xcept as may be otherwise prescribed by regulations, each application for
an immigrant visa shall be signed by the applicant in the presence of the consular officer.” Id.
§ 1202(e) (emphasis added). Congress therefore gave the Department of State “wide-ranging
discretion” in determining the form and manner of immigrant visa applications, cf. Farrell v.
Blinken, No. 19-5357, 2021 WL 2932152, at *8 (D.C. Cir. July 13, 2021) (interpreting a similar
statute permitting the Secretary “to prescribe regulations to govern” certain determinations to
permit an in-person requirement), and explicitly contemplated that certain aspects of immigrant
visa applications would occur in person. Against this backdrop, the Department of State’s
legislative regulations requiring in-person interviews are not “arbitrary, capricious, or manifestly
contrary to the statute,” and thus are entitled to “controlling weight.” Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
Second, Plaintiffs are unlikely to succeed on their due process claim because they have not
established that they are entitled to due process. “The Supreme Court has long held that non-
resident aliens who have insufficient contacts with the United States are not entitled to Fifth
Amendment protections.” Jifry v. F.A.A., 370 F.3d 1174, 1182 (D.C. Cir.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) DINESH BADE et al., ) ) Plaintiffs, ) ) v. ) Case No. 21-cv-01678 (APM) ) DEPARTMENT OF STATE et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER
Plaintiffs are selectees of the 2020 and 2021 Diversity Visa (“DV”) programs who wish to
complete the interview component of their DV applications via videoconference. 1 Pls.’ Request
for a Prelim. Inj., ECF No. 3 [hereinafter Pls.’ Br.], at 11–12. They seek to enjoin Defendants
from requiring that interviews of DV applicants take place in person, arguing that the in-person
interview requirement violates the Administrative Procedure Act (“APA”), the Due Process Clause
of the Fifth Amendment, and the Government Paperwork Elimination Act. Id. at 14. Because
Plaintiffs have not demonstrated that they have standing or that they are likely to succeed on the
merits, the court denies their motion.
I.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In addition, “a party who seeks a preliminary
1 Plaintiffs have represented that only the DV 2021 selectees bring this preliminary injunction motion. See Pls.’ Request for a Prelim. Inj., ECF No. 3, at 11. injunction must show a substantial likelihood of standing.” Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 913 (D.C. Cir. 2015) (cleaned up).
II.
Plaintiffs argue that they “have standing to seek an injunction as they are at continuing risk
of future illegal conduct” based on Defendants’ refusal to permit applicants to complete interviews
via videoconference. Pls.’ Br. at 14. Plaintiffs appear to assert that they are at risk of suffering
two injuries: (1) that their visas will not be finally adjudicated because Defendants’ COVID-19
protocols limit their capacity to conduct in-person interviews, see id. at 13–14; and (2) that
appearing for in-person interviews may expose applicants to COVID-19, see Pls.’ Resp. to Defs.’
Mot. to Dismiss & Reply in Supp. of Request for a Prelim. Inj., ECF No. 13 [hereinafter Pls.’
Reply], at 10. Under the law of this Circuit, plaintiffs who argue that they face an increased risk
of harm must show that the defendants’ actions “substantially increased” the risk that a specific
plaintiff will face harm and demonstrate “a substantial probability” that the plaintiff will suffer
“harm with that increase taken into account.” Food & Water Watch, 808 F.3d at 914 (internal
quotation marks omitted). Plaintiffs may not “aggregate a series of remote and speculative claims”
to establish standing and must identify a “particular individual” who will be harmed. See Pub.
Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1293–94 (D.C. Cir. 2007).
Both of Plaintiffs’ asserted increased-risk injuries fail because Plaintiffs have not
established that any one among them will suffer the injuries imminently. See id. (noting an
“imminence problem arises” when “no one can say who” specifically in a group will suffer an
injury). First, as to the increased risk that Plaintiffs’ DV applications will not be adjudicated,
Plaintiffs have not identified any individual Plaintiff who likely would have had their DV
application adjudicated if not for the in-person interview requirement. Instead, they impermissibly
2 rely on the likelihood that, in the aggregate, some number of them are substantially likely to not
have their DV applications adjudicated if they are required to appear in person. See Pls.’ Br.
at 13–14. Plaintiffs therefore have not adequately demonstrated that they are substantially likely
to have standing. Food & Water Watch, 808 F.3d at 914.
Second, as to Plaintiffs’ increased risk of contracting COVID-19, Plaintiffs again have not
identified any facts showing that any individual Plaintiff faces a substantial risk of contracting
COVID-19 because of the in-person interview requirement. They identify three Plaintiffs who
will need to travel to complete their in-person interviews, and they assume these Plaintiffs face a
risk of infection based on the assertion that “the deadly Delta variant is raging in Europe.” Pls.’
Reply at 10. But Plaintiffs have offered just a couple statistics about the global death toll from the
COVID-19 pandemic and the cumulative case count in Poland as support for the risk that Plaintiffs
face. See id. This evidence is insufficient to show that there is a substantial probability that any
individual Plaintiff will contract COVID-19 if they travel to complete their interview. See Food
& Water Watch, 808 F.3d at 914. Based on this evidence, the court cannot conclude that Plaintiffs
have demonstrated a substantial likelihood of standing.
III.
Even if this court were to conclude that Plaintiffs have standing, their motion would still
fail because they have not shown that they are likely to succeed on the merits of their claims under
the APA or the Due Process Clause or on their claim that the in-person interview requirement is
ultra vires.
First, Plaintiffs are unlikely to demonstrate that the in-person interview requirement for
immigrant visa applicants violates the APA. Congress delegated the particular “form and manner”
that immigrant visa applications must take to the Department of State. See 8 U.S.C. § 1202(a). It
3 further required that, “[e]xcept as may be otherwise prescribed by regulations, each application for
an immigrant visa shall be signed by the applicant in the presence of the consular officer.” Id.
§ 1202(e) (emphasis added). Congress therefore gave the Department of State “wide-ranging
discretion” in determining the form and manner of immigrant visa applications, cf. Farrell v.
Blinken, No. 19-5357, 2021 WL 2932152, at *8 (D.C. Cir. July 13, 2021) (interpreting a similar
statute permitting the Secretary “to prescribe regulations to govern” certain determinations to
permit an in-person requirement), and explicitly contemplated that certain aspects of immigrant
visa applications would occur in person. Against this backdrop, the Department of State’s
legislative regulations requiring in-person interviews are not “arbitrary, capricious, or manifestly
contrary to the statute,” and thus are entitled to “controlling weight.” Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
Second, Plaintiffs are unlikely to succeed on their due process claim because they have not
established that they are entitled to due process. “The Supreme Court has long held that non-
resident aliens who have insufficient contacts with the United States are not entitled to Fifth
Amendment protections.” Jifry v. F.A.A., 370 F.3d 1174, 1182 (D.C. Cir. 2004). Plaintiffs are,
by definition, non-resident aliens, see 8 U.S.C. § 1153(c), and they have not demonstrated any
contacts with the United States that would entitle them to the protections of the Fifth Amendment.
See People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999)
(“Aliens receive constitutional protections only when they have come within the territory of the
United States and developed substantial connections with this country.” (alterations omitted)
(quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990))). Accordingly, Plaintiffs’
due process claim is unlikely to succeed on the merits.
4 Third, Plaintiffs have not identified any provision of the Government Paperwork
Elimination Act that Defendants violate by requiring in-person interviews. They concede that
Defendants have accepted electronic visa applications, Pls.’ Reply at 22, and have not identified
any way that Defendants “den[y] legal effect, validity, or enforceability” of the electronic
signatures on those documents, Pub. L. No. 105-277, § 1707, 112 Stat. 2681 (1998), by requiring
further confirmation of the application to occur in person. Accordingly, they are unlikely to
succeed in demonstrating that in-person interviews violate the Government Paperwork Elimination
Act.
IV.
For the foregoing reasons, the court denies Plaintiffs’ Request for a Preliminary Injunction,
ECF No. 3.
Dated: August 4, 2021 Amit P. Mehta United States District Court Judge