Ibrahim v. U.S. Department of State

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MANAL M. IBRAHIM, et al.,

Plaintiffs, Civil Action No. 19-610 (BAH)

v. Chief Judge Beryl A. Howell

U.S. DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM AND ORDER

The plaintiffs have filed a Motion for Preliminary Injunction (“Pls.’ Mot.”), ECF No. 26,

that concerns the effect of the upcoming expiration of Ms. Zaben’s current medical examination

on Ms. Zaben’s pending visa application. Ms. Zaben’s examination is set to expire on May 27,

2020, but the U.S. Embassy in Jerusalem, due to the U.S. Department of State’s suspension of

routine visa operations during the COVID-19 pandemic, has directed that Ms. Zaben “NOT

undergo any [new] medical examination or send us any documents until partial consular services

are resumed and the courier service restarted.” Pls.’ Ex. D at 1 (capitalization in original), ECF

No. 26-5. The plaintiffs fear that this is an intentional “strategy: deny Ms. Zaben an immigrant

visa because her current medical exam will soon be expiring.” Pls.’ Mem. Supp. Pls.’ Mot.

(“Pls.’ Mem.”) at 1, ECF No. 26-1. Accordingly, they “request the Court for limited injunctive

relief: an order that Defendants: (A) maintain their existing policy of allowing immigrant visa

applicants to submit updated medicals; (B) provide a method by which Plaintiff can deliver her

new medical and passport to the Embassy, and (C) not permanently deny Plaintiff an immigrant

visa on or after May 27, 2020 for failure to provide a new medical.” Pls.’ Mot. at 1.

1 Applicable guidance and the underlying record make clear that Ms. Zaben’s application

is not, in fact, about to be denied for failure to provide an updated medical examination. As the

plaintiffs themselves point out, see Pls.’ Mem. at 2, the State Department’s Foreign Affairs

Manual provides that when a medical examination expires, adjudication of the visa application is

merely postponed until the examination can be updated; no provision of the Manual appears to

authorize denial of an application due to an expired medical examination. See 9 FAM 302.2-

3(C)(a)(4) n.3(c) (“Applicants not traveling to the United States within the exam validity period

will need to undergo a new medical examination. . . . The expired DS forms should be submitted

to the Consular Section along with the complete set of current DS forms for the new medical

examination.”); see also id. 302.2-3(E)(1)(b) (explaining that the “determination” as to “whether

an applicant is eligible for a visa” must be made by State Department personnel “after reviewing

all the records, including the report of the medical examination” (emphases added)). The U.S.

Embassy in Jerusalem section of the State Department website likewise instructs that when a

medical examination expires, the consequences to the applicant are “delays and costs associated

with having to renew part of or the entire medical exam,” U.S. Embassy Jerusalem - JRS, U.S.

Department of State, https://travel.state.gov/content/travel/en/us-visas/Supplements/

Supplements_by_Post/JRS-Jerusalem.html (last visited May 26, 2020), not outright denial of the

pending application.

The defendants have indicated they plan to act in conformance with these policies.

Matthew Paschke, the Visa Chief in the Consular Section at the U.S. Embassy in Jerusalem,

explains that if Ms. Zaben’s current medical examination expires, adjudication of her application

will have to wait until an updated medical examination can be submitted, but he does not state

that her application will be denied. See Decl. of Matthew Paschke, Visa Chief, Consular Section,

2 U.S. Embassy in Jerusalem (“Paschke Decl.”) ¶ 11, ECF No. 30-1 (indicating that if Ms. Zaben’s

current medical examination expires, she will “need a new valid medical examination before her

visa application [can] be reconsidered”); see also id. ¶ 4 (indicating that the Embassy’s standard

practice when a “case is ready for readjudication [but] the medical exam is expired” is to require

that the exam “be redone in order for the consular officer readjudicating the visa application to

be in a position to issue a visa”). This delay is to Ms. Zaben’s benefit. As Paschke further

explains, if the Embassy were to issue Ms. Zaben a visa tied to her current medical examination

and Ms. Zaben failed to travel to the United States by May 27, then Ms. Zaben would potentially

face the outcome she seeks to avoid: having to “reapply for a new visa” and “re-apply for

admission to the United States.” Id. ¶ 8 (“If an alien were to present a valid visa in applying for

admission at a U.S. port of entry as a lawful permanent resident but without a valid medical

examination,” “the alien could incur the burden and expense of travel back to their prior

residence to obtain a valid medical examination, update any other documents that expired in the

meantime, reapply for a new visa, and then attempt to travel and re-apply for admission to the

United States.”). The Embassy “tr[ies] in all cases to keep that from happening to the aliens who

apply for immigrant visas at [its] consular section.” Id.

The defendants’ past treatment of Ms. Zaben’s visa application confirms that the

defendants do not plot to deny Ms. Zaben’s application due to expiration of her medical

examination. In late November of last year, the defendants contacted Ms. Zaben a few weeks

before her medical examination expired to ask whether she could travel to the United States

before the expiration occurred, just as they have done again now. See Defs.’ Consent Mot. for

Extension of Time ¶ 2, ECF No. 13. Similarly, in July of last year, a consular officer could not

adjudicate Ms. Zaben’s application due to Ms. Zaben’s failure to provide certain documents, but

3 the defendants merely delayed adjudication; they did not issue a final denial. See Defs.’ Consent

Mot. for Extension of Time ¶¶ 2-4, ECF No. 10. The plaintiffs fail to establish that this time, the

defendants plan to proceed differently.

Given that the expiration of Ms. Zaben’s current medical examination will lead to delay

but not denial, the preliminary injunction factors weigh against granting the plaintiffs’ motion.

As to the plaintiffs’ likelihood of success on the merits, the plaintiffs focus on whether the

defendants have unreasonably delayed adjudication of Ms. Zaben’s application, see Pls.’ Mem.

at 8–12, but that issue is properly addressed at summary judgment, and is irrelevant to the current

dispute. Indeed, ordering, as the plaintiffs ask, that the defendants “not permanently deny

Plaintiff an immigrant visa on or after May 27, 2020 for failure to provide a new medical,” Pls.’

Mot. at 1, would only further delay adjudication of Ms. Zaben’s application, if it had any impact

on timing whatsoever (and by all accounts, it will not). Further, the other three factors—

irreparable harm to the plaintiffs, the balance of the equities, and the public interest—also weigh

on the side of the defendants, given that Ms. Zaben’s application is not about to be denied, and

that any delay will occur no matter what, due to the current suspension of routine visa operations.

See Paschke Decl. ¶ 13.

The plaintiffs’ confusion about what will happen to Ms. Zaben’s application upon the

expiration of her current medical examination is understandable. Government counsel’s

statements to the plaintiffs’ attorney on that score were ambiguous, to say the least, see, e.g.,

Pls.’ Ex. A at 7, ECF No. 26-2 (May 7, 2020 email from government counsel stating that Ms.

Zaben would have “to redo everything necessary”), and government counsel essentially refused

to respond to the plaintiffs’ attorney’s reasonable requests for clarification, see id. at 2–8, which

could have facilitated an amicable resolution to what, in the end, is no dispute whatsoever, given

4 that the defendants do not intend what the plaintiffs would prevent. In fact, exacerbating the

confusion and controversy, government counsel may have misrepresented the Embassy’s

position. Compare, e.g., id. at 8 (May 7, 2020 email from government counsel relaying that if

Ms. Zaben wished to travel to the United States before May 27 she had to “immediately, i.e., by

tomorrow, send her medical exam and passport to the consular section” (emphasis added)), with

Paschke Decl. ¶ 11 (stating that the message conveyed to Ms. Zaben by the Embassy on May 7,

2020 was that if she wished to travel to the United States before May 27 “she should send in her

documents as soon as possible” (emphasis added)); see also Pls.’ Ex. A at 1 (May 8, 2020 email

from plaintiffs’ attorney telling government counsel that “[t]he request that [Ms. Zaben] provide

her passport and medical within 24 hours came from your email correspondence to me”). At a

minimum, government counsel took an aggressive and combative tone when quibbling over

irrelevant, “he-said, she-said” disputes, see, e.g., Pls.’ Ex. A at 4 (May 7, 2020 email from

government counsel insisting that plaintiffs’ attorney’s statement that Ms. Zaben could travel to

the consulate “if necessary,” “indicate[d] that Ms. Zaben [could] deliver her passport and

medical to the consular section by” the very next day), and thus implied that the largely

inconsequential May 8 and May 27 deadlines actually carried great significance.

Even government counsel’s opposition memorandum, which ignores and avoids matters

that the Court ordered be addressed, see Min. Order (May 19, 2020), creates doubt as to what

will occur on May 27, 2020. For instance, responding to a direct inquiry from the Court,

government counsel states that what Ms. Zaben will have to “redo” after May 27 will “depend[]

on what is necessary at that point in time,” Defs.’ Opp’n Pls.’ Mot. at 6, ECF No. 30, which is

fair enough, as perhaps additional parts of Ms. Zaben’s application will become out of date and

need renewal, but government counsel refuses to provide the information that clearly matters—

5 namely, that even if Ms. Zaben ends up having to provide more than just her passport and an

updated medical examination after May 27, she will not have to reapply for a visa and “redo” the

entire eight-year process that has transpired up until now due solely to the fact that Ms. Zaben’s

medical examination happened to expire during a period when a global pandemic prevented Ms.

Zaben from sending in an updated one.

Despite government counsel’s apparent intransigence, the Foreign Affairs Manual, the

Embassy’s website, the Paschke declaration, and the defendants’ past actions have provided the

clarity needed to see that the defendants already plan to do what the plaintiffs want: adjudicate

Ms. Zaben’s application on the merits after May 27 using an updated medical examination, albeit

not until restrictions related to COVID-19 are relaxed.

For the foregoing reasons, it is hereby ORDERED that the plaintiffs’ Motion for a

Preliminary Injunction, ECF No. 26, is DENIED.

SO ORDERED.

Date: May 26, 2020

__________________________ BERYL A. HOWELL Chief Judge