Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry

• Court: District Court, District of Columbia
• Decided: January 28, 2016
• Docket: Civil Action No. 2015-0300
• Status: Published

Opinion

..

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NINE IRAQI ALLIES UNDER SERIOUS THREAT BECAUSE OF THEIR FAITHFUL SERVICE TO THE UNITED STATES, Civil Action No. 15-300(GK) Plaintiffs,

v.

HON. JOHN F. KERRY, et al.

Defendants,

MEMORANDUM OPINION

CONTENTS

I . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. The Special Immigrant Visa Programs ........................... 4 B. Plaintiffs' Circumstances .................................... 10 II. STANDARD OF REVIEW ........................................... 18 III . ANALYSIS .......... ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 A. Plaintiffs' Motion for Leave to File Supplemental Declaration 20 B. Counts 3-6: Failure to Adjudicate Plaintiffs' Applications ... 22 1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2. The Doctrine of Consular Nonreviewability ...................... 28 3. Judicially Manageable Standards to Enforce a Non-discretionary Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 4. The APA and the Mandamus Act .................................... 59 C. Counts 1 & 2: Failure to Protect ............................. 61 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Plaintiffs in this case are Iraqi and Afghan citizens who

incurred great risks to themselves and their families through their

i service to the United States during the military operations in ·I I

Iraq and Afghanistan known as Operation Iraqi Freedom and Operation

Enduring Freedom. In order to avoid ongoing threats to their

personal safety, Plaintiffs hope to immigrate to the United States

pursuant to Iraqi and Afghan Special Immigrant Visa programs that

Congress authorized to provide refuge for Iraqis and Afghans who

face or have faced serious threats because of their past faithful

service to the United States. See Refugee Crisis in Iraq Act of

2007 ("RCIA"), 8 U.S.C. § 1157 note at §§ 1241-49; Afghan Allies

Protection Act of 2009 ("AAPA"), 8 U.S.C. § 1101 note at §§ 601-

02. 1 Because of the ongoing risk of reprisal they face, Plaintiffs

have been granted leave to proceed by pseudonym in this action. 2

See Order Granting Motion to Proceed by Pseudonym [Dkt. No. 2].

Plaintiffs contend that Defendants, Secretary of State John

F. Kerry, the Department of State, Secretary of Homeland Security

Jeh Charles Johnson, and the Department of Homeland Security

(collectively, "Defendants" or "the Government"), have failed to

1 The RCIA and AAPA are codified as notes to 8 U.S.C. §§ 1157 and 1101, respectively. The Court cites to provisions of these acts with the relevant act's abbreviation and section number (e.g., RCIA § 1241) throughout.

2The relevant pseudonyms and factual distinctions in each of the Plaintiffs' situations are set forth below. -2- make reasonable efforts to protect Plaintiffs or remove them from

Iraq and Afghanistan, and have failed to finally adjudicate

Plaintiffs' Special Immigrant Visa applications within a

reasonable period of time. Amended Compl. ~~ 205-54. Plaintiffs'

Amended Complaint seeks an order compelling these actions pursuant

to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (1),

and the Mandamus Act, 28 U.S.C. § 1361.

On September 1, 2015, the Government filed its Motion to

Dismiss for Lack of Jurisdiction and Failure to State a Claim

("Gov't's Mot.") [Dkt. No. 36]. It contends that Plaintiffs lack

standing to pursue their claims and have failed to state claims

upon which relief can be granted because, among other reasons,

Plaintiffs have received final refusals of their applications. On

September 25, 2015, Plaintiffs filed their Opposition 1Dkt. No.

43], and on October 2, 2015, the Government filed its Reply [Dkt.

No. 45].

On October 23, 2015, Plaintiffs filed a Motion for Leave to

File a Supplemental Declaration in Support of Plaintiffs'

Opposition to Defendants' Motion to Dismiss [Dkt. No. 48] along

with a copy of the Supplemental Declaration [Dkt. No. 48-1]. On

November 6, 2015, the Government filed its Response [Dkt. No. 49].

On November 9, 2015, Plaintiffs filed their Reply [Dkt. No. 50].

-3- Upon consideration of the Government's Motion to Dismiss,

Plaintiffs' Opposition, the Government's Reply, Plaintiffs' Motion

for Leave, the Government's Response, Plaintiffs' Reply, and the

entire record herein, and for the reasons stated below, Plaintiffs'

Motion for Leave to File a Supplemental Declaration shall be

granted and the Government's Motion to Dismiss shall be granted

with respect to Counts 1 & 2 and denied with respect to Counts 3-6

(except insofar as those claims relate to Alpha, Bravo, and Delta) .

I . BACKGROUND

A. The Special Immigrant Visa Programs

In recognition of the grave dangers faced by many Iraqis and

Afghans who have assisted United States' military efforts in their

countries, Congress established Iraqi and Afghan Special Immigrant

Visa ("SIV") programs, enacting the Refugee Crisis in Iraq Act of

2007, RCIA §§ 1241-49, and the Afghan Allies Protection Act of

2009, AAPA §§ 601-02. Under the Iraqi SIV program, an SIV may be

granted to an applicant who:

(A) is a citizen or national of Iraq;

(B) was or is employed by or on behalf of the United States

Government in Iraq, on or after March 20, 2003, for not less

than one year;

(C) provided faithful and valuable service to the United

States Government, which is documented in a positive

-4- recommendation or evaluation . . . from the employee's senior

supervisor or the person currently occupying that position,

or a more senior person, if the employee's senior supervisor

has left the employer or has left Iraq; and

(D) has experienced or is experiencing an ongoing serious

threat as a consequence of the alien's employment by the

United States Government.

RCIA § 1244(b) (1). Spouses and children of individuals who meet

the RCIA's requirements may also receive SIVs. RCIA § 1244(b) (2).

The AAPA includes substantially similar provisions that off er

SIVs to citizens or nationals of Afghanistan employed by or on

behalf of the United States Government (or in certain

circumstances, the International Security Assistance Force) in

Afghanistan, on or after October 7, 2001 for not less than one

year, as well as their spouses and children. AAPA § 602(b) (2) (A)

& (B) .

In both the RCIA and the AAPA, Congress instructed Defendants

to "improve the efficiency by which applications for [SIVs] under

[the Iraqi and Afghan SIV programs] are processed [.] " AAPA

§ 602(b) (4) (A); RCIA § 1242(c) (1). Congress emphasized this point

with the directive that SIV applications shall be "processed so

that all steps under the control of the respective departments

incidental to the issuance of [SIVs] , including required

-5- screenings and background checks, should be completed not later

than 9 months after the date on which an eligible alien submits

all required materials to complete an application for such visa."

RCIA § 1242(c) (1); AAPA § 602(b) (4) (A) (repeating identical

language) . Mindful that particular cases might present national

security risks not present in the average SIV application, Congress

added that "[n]othing in [the] section [quoted immediately above]

shall be construed to limit the ability of [the Secretary of State

or Secretary of Homeland Security] to take longer than 9 months to

complete those steps incidental to the issuance of such visas in

high-risk cases for which satisfaction of national security

concerns requires additional time.'~ RCIA § 1242 (c) (2); AAPA §

6 O2 (b) ( 4) ( B) (same) .

Both statutes also provide that "[t]he Secretary of State, in

consultation with the heads of other relevant Federal agencies,

shall make a reasonable effort to provide an alien described in

this section who is applying for a special immigrant visa with

protection or the immediate removal from [Iraq or Afghanistan] , if

possible, of such alien if the Secretary determines after

consultation that such alien is in imminent danger." RCIA §

1244(e); AAPA § 602(b) (6) (providing same treatment for protection

-6- or removal of applicants from Afghanistan with only slight

differences in phrasing) . 3

The RCIA and AAPA require Defendants to issue reports to

Congress regarding the number and status of SIV applications and

improvements to the process for considering SIV applications. See

RCIA § 1248 (a), (f); APAA § (b) (11). Many of these Joint Reports

from the Departments of State and Homeland Security (referred to

throughout as "Joint Reports") , which Plaintiffs summarized in

their Amended Complaint and submitted as exhibits to their

Opposition, provide insight into the process by which Defendants

review Iraqi and Afghan .SIV applications. See Amended Compl. ~~

44-50; Pls.' Exs. L-W [Dkt. Nos. 43-4 through 43-15].

As each of the Joint Reports states, "SIV applications move

through 14 steps, in the following four stages: Chief of Mission

(''C.OM") Application Process; Form I-360 Adjudication; Visa

Interview; and Visa Issuance." E.g., Pls.' Ex. Lat 2. Chief of

Mission Approval (which is granted on the basis of the Chief of

Mission Application and is referred to by the Parties as "COM

3 "The Secretary of State, in consultation with the heads of other appropriate Federal agencies, shall make a reasonable effort to provide an alien described in subparagraph (A) , (B), or (C) of paragraph (2) who is seeking special immigrant status. under this subsection protection or to immediately remove such alien from Afghanistan, if possible, if the Secretary determines, after consultation, that such alien is in imminent danger." AAPA § 602 (b) (6). -7- Approval") is required by the APAA and RCIA. RCIA § 1244 (b) (4);

AAPA § 602(b) (2) (D). Both statutes state that the relevant Chief

of Mission in Iraq or Afghanistan must "conduct a risk assessment

of the alien and an independent review of records maintained by

the United States Government or hiring organization or entity to

confirm employment and faithful and valuable service to the United

States Government prior to approval of a petition under this

section. fl RCIA § 1244 (b) (4) (A); AAPA § 602 (b) (2) (D) (i).

Once an applicant has received COM Approval, he or she must

enter the second stage of the process by submitting a completed

Form I-360 to the Department of Homeland Security's U.S.

Citizenship and Immigration Services ("USCIS"). ~' Pls.' Ex. R

at 3. If USCIS approves the petition, it is sent to the Department

of State's National Visa Center ("NVC"), and the applicant begins

the Visa Interview Process stage. Id.

The Visa Interview Process stage includes six steps of the 14

steps that make up the SIV application process -- more than any of

the three other stages. Id. In this stage, the applicant must

submit certain documents to the NVC and schedule an interview at

the appropriate U.S. Embassy. Id.

The Joint Reports uniformly describe the last two steps in

the Visa Interview Process stage (which are steps 12 and 13 of the

full 14-step application process) as follows:

-8- 12. Applicant is interviewed by consular officer on the scheduled appointment date. Administrative processing is initiated following the interview.

13. The applicant's case undergoes administrative processing.

~, Pls.' Ex. oat 3. 4

"Upon completion of administrative processing," the

applicant enters the fourth and final stage: Visa Issuance.

Id. This last stage has just one step in which a "visa is

issued if [the] applicant is eligible." Id. However, the Joint

Reports note that by this point, " [i] n some cases, the

passport or medical exam will have expired and require renewal

by the applicant." Id.

4 Although the Joint Reports describe "administrative processing" as a necessary step in the SIV application process that must follow the consular interview and precede visa issuance, see e.g., Pls.' Ex. 0 at 3, State Department regulations require consular officers to "either issue or refuse" any visa immediately "[w] hen a visa application has been properly completed and executed before a consular officer in accordance with the provisions of [the Immigration and Naturalization Act] and [that Act's] implementing regulations[.]" 22 C.F.R. § 42.81 (2015).

The United States Foreign Affairs Manual underscores this point further, stating "[t]here are no exceptions to the rule that once a visa application has been properly completed and executed before a consular officer a visa must be either issued or refused. There is no such thing as an informal refusal or a pending case once a formal application has been made." 9 FAM 42.81 Nl.

The apparent conflict between these general agency visa regulations and the SIV-specific Joint Reports' statement that an "administrative processing" step must precede visa issuance is discussed below in section III.B.2.a.

-9- B. Plaintiffs' Circumstances

Plaintiffs' Amended Complaint brings claims on behalf of 12

Plaintiffs -- 8 Iraqi and 4 Afghan citizens -- proceeding under

the following pseudonyms: Ronaldo, Alpha, Bravo, Delta, Foxtrot,

India, Juliet, Alice, Hotel, Lima, Kilo, and Mike. 5

There is significant disagreement between the Parties as to

the circumstances of the 12 Plaintiffs' applications. Some of the

disagreements are over the Parties' construction of the law and

facts at issue in this particular case. For example, Plaintiffs

contend that most of their applications have not been finally

granted or refused, but instead, languish in an intermediate stage

of "administrative processing." See Poellot Deel. [Dkt. No. 43-

1]; Pls.' Exs. C-K [Dkt. Nos. 44-2 through 44-10]. The Government

contends, counterintuitively, that while Plaintiffs' applications

may still be granted following "administrative processing," the

applications have, in fact, been finally refused. See Dybdahl Deel.

5 Plaintiffs' initial Complaint [Dkt. No. 3] included the claims of additional Plaintiffs under the pseudonyms Frodo, Charlie, Echo, and Golf. Frodo and Echo have since been issued visas. Gov't's Mot. at 4-5. Charlie and Golf's applications have been refused under 8 U.S.C. § 1182 (a) (3) (B), which provides that individuals who have any of the various enumerated ties to terrorist activities are ineligible for admission to the United States. Id. The Parties agree that Frodo, Echo, Charlie, and Golf are no longer Plaintiffs in this suit. See generally Amended Compl.

-10- [Dkt. No. 36-1] . 6 Disagreements of this type are flagged in the

paragraphs that follow and are discussed more thoroughly in

subsequent sections of this Memorandum Opinion.

Other disagreements are over the Government's apparent

factual mistakes. Because these disagreements appear to concern

obvious errors, the Court will resolve them in this section. The

Court will discuss groups of Plaintiffs collectively where

appropriate and indicate when it is resolving the Parties'

competing views of the facts, as it must when facts determine the

Court's jurisdiction. Jerome Stevens Pharm., Inc. v. Food & Drug

Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("the district court

may consider materials outside the pleadings in deciding whether

to grant a motion to dismiss for lack of jurisdiction"); Fed. R.

Civ. P. 12 (h) (3) ("If the court determines at any time that it

6 All except one of the refusals relevant to this Motion the Government claims to have issued were issued under 8 U.S. C. § 1201(g), which provides:

No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or ( 3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law . -11- lacks subject-matter jurisdiction, the court must dismiss the

action.").

1. Renaldo

Ronalda is an Iraqi citizen who applied for COM Approval on

October 2, 2009, and completed his visa interview on October 13,

2010. Amended Compl. at ~ 62. A Declaration submitted by the

Government (referred to throughout as the Dybdahl Declaration)

states that as of September 1, 2015, Ronalda's application had

been refused under 8 U.S.C. § 120l(g). Dybdahl Deel. ~ 5. According

to the Department of State's Consular Electronic Application

Center Case Status Tracker ("Case Status Tracker"), which allows

applicants to verify the status of their SIV applications, Pls.'

Ex. X [Dkt. No. 43-16], as of September 11, 2015, Ronalda's

application remained in "administrative processing," Pls.' Ex. C.

[Dkt. No. 44-4].

Despite the statement from the Government's own declarant

that Ronalda's visa had been refused, the Government's Motion

inexplicably asserts four times that Ronalda has been issued a

visa, rendering his claims moot. Gov't's Mot. at 1 n. l

(inaccurately citing Dybdahl Deel. for proposition that Ronalda

had been issued a visa); id. at 10 (same); id. at 8 (repeating

claim without citation); id. at 9 (repeating claim without

citation) . In their Opposition, Plaintiffs correct the

-12- Government's apparent error as to Ronaldo's application status,

noting that Ronaldo has not been issued a visa. Pls.' Opp'n at 3

n.3. The Government's Reply does not acknowledge, correct, or even

address the error.

Apparently attempting to set the record straight, on October

15, 2015, Ronaldo's counsel emailed the Immigrant Visa Unit at the

U.S. Embassy in Baghdad to inquire about the status of Ronaldo's

application. See Ramos-Mrosovsky Deel. [Dkt. No. 48-1]. The

Immigrant Visa Unit responded:

Your client's case remains pending additional administrative processing, which must be completed before a final determination can be made on his Special Immigrant Visa (SIV) application. As soon as this administrative processing stage is finalized, we will immediately contact you with further details. No further action is required from your client at this time.

Supp. Deel. Ex. A [Dkt. No. 48-2] On October 23, 2015, Plaintiffs

submitted a Motion for Leave to File this e-mail and an

accompanying declaration on the docket. On November 6, 2015, the

Government filed its Opposition, which again, never even

acknowledged its previous erroneous statements as to the status of

Ronaldo's visa application. Along with its Opposition, the

Government filed an updated version of the Dybdahl Declaration

("Second Dybdahl Deel."), which, like the previous Dybdahl

Declaration, states that Ronaldo's visa application "remains

-13- refused under [] 8 U.S. C. § 1201 (g) . " Second Dybdahl Deel. [Dkt.

No. 49-1).

Upon this record, it is clear that Ronaldo has not received

a visa.

2. Alpha

Alpha is an Iraqi citizen who applied for COM Approval on

January 5, 2010, and completed his visa interview on August 25,

2011. Amended Compl. ~ 73. According to the Government's declarant,

Alpha and his family members were issued visas on August 30, 2015.

Dybdahl Dec. at ~ 6. Plaintiffs agree that Alpha has been granted

a visa. Pls.' Opp'n at 3 n.3. However, the Government's Motion to

Dismiss - - filed September 1, 2015 -- states at several points

that Alpha's visa application had been finally refused under 8

U.S.C. § 1201(g). Gov't's Mot. at 4, 8, 9, 10, and 13. Plaintiffs'

Opposition notes the Government's apparent error, Pls.' Opp'n at

3 n.3, but the Government's Reply fails to acknowledge it.

Accordingly, the Court concludes that Alpha has, in fact,

been issued a visa, and Alpha's claims are moot.

3. Bravo

Bravo is an Iraqi citizen who applied for COM Approval on

March 30, 2011, and completed his visa interview on February 13,

2012. Amended Compl. at ~ 81. The Dybdahl Declaration states that

as of September 1, 2015, Bravo's application had been refused under

-14- 8 U.S.C. § 1201(g), and the Government's Motion states that Bravo's

application had received a "final" refusal as of that date. Gov't's

Mot. at 10; Dybdahl Deel. ~ 7. However, on September 4, 2015, Bravo

and his family members were issued visas. Pls.' Opp'n at 3 n.3;

Second Dybdahl Deel. at ~ 7. Thus, Bravo's claims are moot.

4. Delta.·

Del ta is an Iraqi citizen who applied for COM Approval on

February 1, 2011, and completed his visa interview on October 4,

2011. Amended Compl. at ~ 89. The Dybdahl Declaration states that

Delta and his wife were most recently interviewed by a consular

officer on August 27, 2015, but as of September 1, 2015, Delta's

application had been refused under 8 U.S.C. § 1201(g). Dybdahl

Deel. at ~ 9. The Second Dybdahl Declaration, however, states that

on September 30, 2015, a consular officer issued visas to Delta

and his family members. Second Dybdahl Deel. at~ 9. 7 Thus, Delta's

claims are moot.

5. Foxtrot, India, Juliet, and Alice

Foxtrot, India, Juliet, and Alice are Iraqi citizens. Foxtrot

first applied for COM Approval on March 20, 2011, and completed

his visa interview on September 17, 2012. Amended Compl. ~ 100.

7 Plaintiffs' Opposition -- filed September 25, 2015 -- fails to take account of the change in Delta's status. -15- India first applied for COM Approval on February 2, 2010.

Amended Compl. ~ 125. India and his family members were issued

visas in June of 2012. Dybdahl Deel. ~ 14. However, he and his

family were not permitted to board a flight to the United States,

and the visas were subsequently revoked. Id.

Juliet first applied for COM Approval on March 29, 2011, and

completed his visa interview on March 1, 2012. Amended Compl.

~ 139.

Alice was granted COM Approval on July 11, 2010, and completed

her visa interview on November 24, 2010. Amended Compl. ~~ 170-71.

The Dybdahl Declaration states that as of September 1, 2015,

Foxtrot, India, Juliet, and Alice's applications had been refused

under 8 U.S.C. § 1201(g). Dybdahl Deel. at ~~ 11, 14, 15, and 19;

see also Second Dybdahl Deel. at ~~ 11, 14, 15, and 19 (repeating

same as of September 30, 2015). The Government's Motion states

that Foxtrot, India, Juliet, and Alice's applications had received

"final" refusals as of September 1, 2015. Gov't's Mot. at 10.

According to the Case Status Tracker, as of September 24,

2015, Foxtrot, India, Juliet, and Alice's applications remained in

"administrative processing." Pls. ' Exs. F, H, I, and K. The Parties

disagree as to whether the "administrative processing" designation

is consistent with the statement that the applications have been

finally refused.

-16- 6. Hotel and Lima

Hotel and Lima are Afghan citizens. Hotel first applied for

COM Approval on February 10, 2011, and completed his visa interview

on November 19, 2012. Amended Compl. ~ 110. Lima applied for COM

Approval on February 11, 2011, and completed his visa interview on

February 26, 2012. Amended Compl. ~ 34.

Hotel and Lima's applications had been refused under 8 U.S. C.

§ 1201(g). Dybdahl Deel. at ~~ 13 and 17; see also Second Dybdahl

Deel. at ~~ 13 and 17 (repeating same as of September 30, 2015).

The Government's Motion states that Hotel and Lima's

applications had received "final" refusals as of September 1, 2015.

Gov't's Mot. at 10. According to the State Department's Case Status

Tracker, as of September 24, 2015, Hotel and Lima's applications

remained in "administrative processing." Pls.' Exs. G and J. Again,

the Parties disagree as to whether the "administrative processing"

designation is consistent with the statement that the applications

have been finally refused.

7. Kilo

Kilo is an Afghan citizen. He submitted his application for

COM Approval on August 25, 2014, and no action has been taken on

his application since that time. Amended Compl. ~ 33. Lacking COM

Approval, a prerequisite for the second stage of the SIV

-17- application process, Kilo does not have a complete SIV application

pending before the State Department. See Dybdahl Deel. ~ 16; Second

Dybdahl Deel. ~ 16.

8. Mike

Mike is an Afghan citizen. The Dybdahl Declaration states

that on December 3, 2012, Mike's SIV application was refused under

8 U.S.C. § 1201(g). Dybdahl Deel. at~ 18. The Declaration goes on

to state that on April 23, 2013, Mike's application was further

refused under 8 U.S.C. § 1182(a) (5) (A) ,sand was returned to users for review and possible revocation of COM Approval. Id. According

to the Case Status Tracker, as of September 24, 2015, Mike's

application was listed as "At NVC [,]" which refers to the State

Department's National Visa Center. Pls.' Ex. D [Dkt. No. 44-3].

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 12(b) (1), "[t]he plaintiff bears the

burden of invoking the court's subject matter jurisdiction" to

hear his or her claims. Arpaio v. Obama, 797 F.3d 11, 19 (D.C.

Cir. 2015). In deciding whether to grant a motion to dismiss for

lack of jurisdiction, the Court must "accept all of the factual

allegations in [the] [C]omplaint as true[.]" Jerome Stevens

8 It is far from clear what relationship the cited statute has to Mike's Afghan SIV application, as .8 U.S.C. § 1182(a) (5) (A) specifies the grounds for denying entry to "alien[s] who seek[] to enter the United States for the purpose of performing skilled or unskilled labor[.]" -18- Pharm., 402 F.3d at 1253-54 (quoting United States v. Gaubert, 499

U.S. 315, 327 (1991)) (internal quotation marks omitted). However,

" [w] here necessary to resolve a jurisdictional challenge under

Rule 12(b) (1), the court may consider the complaint supplemented

by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court's resolution of

disputed facts." Banneker Ventures, LLC v. Graham, 798 F.3d 1119,

1129 (D.C. Cir. 2015) (internal citation and quotation marks

omitted).

In order to survive a motion to dismiss under Rule 12(b) (6),

a plaintiff need only plead "enough facts to state a claim to

relief that is plausible on its face" and to "nudge [ ] [his or

her] claims across the line from conceivable to plausible." Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a

claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the complaint."

Id. at 563.

Under the Twombly standard, a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success . [,] must assume all the allegations in

the complaint are true (even if doubtful in fact) [, and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged." Aktieselskabet AF 21. November

-19- 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal

quotation marks and citations omitted). A complaint will not

suffice, however, if it "tenders 'naked assertion[s]' devoid of

'further factual enhancement."' Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in

Iqbal).

III. ANALYSIS

A. Plaintiffs' Motion for Leave to File Supplemental Declaration

Plaintiffs request leave to file an e-mail from the Immigrant

Visa Unit of the U.S. Embassy in Baghdad, Iraq stating that

Ronaldo's application remains in "administrative processing, which

must be completed before a final determination can be made on his

[SIV] application." Supp. Deel. Ex. A [Dkt. No. 48-2]. Plaintiffs

also ask to file a Declaration explaining the e-mail's origin.

Supp. Deel. [Dkt. No. 48].

The Government argues that Plaintiffs' additions to the

record are redundant and unnecessary. But Plaintiffs' submission

serves to rectify confusion that the Government itself created.

As discussed above, see supra section I.B.1. I the

Government's Motion erroneously states four times that Ronaldo has

been issued a visa. That is clearly incorrect as shown in the

-20- e-mail, which removes the confusion caused by the Government's

mistake.

The Court finds it very troubling that the Government would

make important factual misstatements, fail to acknowledge them

when they are proven to be incorrect, and then oppose the

submission of evidence which corrects the mistake.

Second, the Government contends that Plaintiffs' submission

is merely an attempt to reiterate arguments from their Opposition.

However, Plaintiffs' submission is not argument but evidence,

which bears on facts critical to establishing the Court's

jurisdiction.

Third, the Government argues that because Plaintiffs'

applications have been finally refused, they should not be able to

supplement the record with evidence to the contrary. Obviously

this argument rests upon the premise that Plaintiffs' applications

have been finally adjudicated, but as the Court explains below,

the record demonstrates that they have not.

Finally, the Government contends that if the Court accepts

Plaintiffs' supplemental filing, "fairness requires that

Defendants also be allowed to provide an updated [D]eclaration to

ensure that the Court has the proper context in which to analyze

the jurisdictional facts as they have developed." Gov't's Opp'n to

Pls.' Mot. at 4.

-21- In the interest of efficiency and accuracy in establishing

facts relevant to the Court's jurisdiction, the Court will grant

Plaintiffs' Motion and consider both the submitted e-mail as well

as the updated Declaration that the Government has submitted. See

Supp. Deel. Ex. A [Dkt. No. 4 8 -2] ; Second Dybdahl Deel. [Dkt.

No. 49-1]

B. Counts 3-6: Failure to Adjudicate Plaintiffs' Applications

Counts 3 through 6 of Plaintiffs' Amended Complaint seek an

order directing the Government to adjudicate Plaintiffs' SIV

applications, which, according to Plaintiffs, are awaiting final

action. Counts 3 and 4 arise under the Mandamus Act, 28 U.S.C.

§ 1361, which grants district courts jurisdiction to hear

"action [s] in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to perform a

duty owed to the plaintiff." Id. Counts 5 and 6 are brought under

the APA's grant of authority to "compel agency action unlawfully

withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1).

Plaintiffs contend that the APA requires Defendants to

finally adjudicate their applications within a "reasonable

time[.]" 5 U.S.C. § 555(b) ("With due regard for the convenience

and necessity of the parties or their representatives and within

a reasonable time, each agency shall proceed to conclude a matter

-22- presented to it."). They further contend that the RCIA and AAPA

establish nine months as the presumptively reasonable period in

which to adjudicate applications. RCIA § 1242 (c) (1) ("all steps

under the control of the respective departments incidental to the

issuance of such visas, including required screenings and

background checks, should be completed not later than 9 months

after the date on which an eligible alien submits all required

materials to complete an application for such visa.") ; AAPA §

602 (4) (A) (same). Because Plaintiffs claim to have waited longer

than nine months for final action on their applications, they ask

that the Court compel such action under the Mandamus Act and/or

the APA.

The Government contends that Plaintiffs lack standing to

bring their claims, that the Court otherwise lacks jurisdiction to

hear Plaintiffs' claims, and that Plaintiffs have failed to state

a claim upon which relief can be granted. Two arguments are central

to these grounds for dismissal: 1) that Plaintiffs' applications

have already been finally denied and are not subject to judicial

review under the doctrine of consular nonreviewability, and 2)

that Plaintiffs have failed to identify a non-discretionary duty

owed to them or judicially manageable standards to assess the

Government's performance of any such duty.

-23- 1. Standing

litigate Counts 3-6. In order to establish standing, Plaintiffs

must demonstrate (1) that they have suffered an injury in fact

that is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) that the injury is fairly

traceable to the challenged action of the defendant; and (3) that

it is likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992).

As alleged in the Amended Complaint, Plaintiffs' primary

injury is the deprivation of final decisions on their SIV

applications within a reasonable time as required by RCIA

§ 1242 (c) (1), AAPA § 602 (b) (4) (A), and the APA, 5 U.S.C. § 555 (b).

Plaintiffs also allege that the Government's failure to provide

timely adjudication of their applications has exposed them and

their families to serious, imminent threats to their life and

well-being as a result of their service to the United States.

Amended Compl. ~~ 223, 232, 242, 251.

The Government argues that Plaintiffs lack standing to pursue

their claims because their applications have, in fact, been finally

refused. According to the Government, because Plaintiffs have

-24- received final refusals, they have received everything to which

they are entitled and have suffered no redressable injury.

The Government is incorrect. Because the Government's

contention that Plaintiffs' SIV applications have already been

finally adjudicated is intricately intertwined with its other

jurisdictional argument based on the doctrine of consular

nonreviewability, it can only be unraveled with close scrutiny of

the factual record. Accordingly, the Court addresses this issue in

detail in section III.B.2.a.

For present purposes, however, the Court notes the following

conclusions that are fully explained below: Ronalda, Foxtrot,

India, Juliet, Alice, Hotel, and Lima's SIV applications have not

been finally refused and instead, remain in "administrative

processing," see infra section III.B.2.a.; Mike and Kilo's SIV

applications likewise await additional actions by the Government

and thus, have not been finally refused, see infra section

III.B.2.c.; Alpha, Bravo, and Delta's applications have been

granted, and thus, their claims are moot, see infra section

III.B.2.a. Accordingly, Ronalda, Foxtrot, India, Juliet, Alice,

Hotel, Lima, Mike, and Kilo have suffered an injury in fact: the

failure to receive final decisions on their SIV applications within

a reasonable period.

-25- Having shown that they have suffered an injury, Plaintiffs

must also show that their alleged injury is caused by the

complained of conduct. The Government raises no argument with

respect to causation. Plaintiffs' alleged injury -- the lack of

final decisions on their SIV applications is quite clearly

caused by Defendants' conduct (i.e., Defendants' failure to

adjudicate the applications). Thus, Plaintiffs have satisfied the

causation prong of the standing inquiry.

Finally, the Government argues that a favorable decision by

this Court would not redress Plaintiffs' injury. The Government

first contends that Plaintiffs are not entitled to redress because

the timelines set out by Congress for the adjudication of SIV

applications are discretionary. This argument, like the

Government's contention that Plaintiffs' applications have been

finally refused, is also deeply interwoven with other

jurisdictional arguments, which will be fully discussed and

rejected below in section III.B.3. In summary, the APA, 5 U.S.C.

§ 555 (b) , creates a duty for the Government to reach a final

decision on Plaintiffs' applications "within a reasonable period,"

and RCIA § 1242(c) (1) and AAPA § 602(4) (A) clarify that that duty

is non-discretionary and must "ordinarily" be completed within

nine months. See infra section III.B.3 ..

-26- The Government also argues that the Court may not redress

Plaintiffs' injuries because courts are not free to fashion their

own "coercive sanctions" to bring about compliance with statutory

deadlines. See Gov't's Reply at 15 (citing, inter alia, United

States v. James Daniel Good, 510 U.S. 43, 63 (1993)). In that case,

the Supreme Court overturned a Court of Appeals' holding that

failure to comply with certain timing requirements applicable to

asset forfeiture mandated dismissal of the forfeiture action. 510

U.S. at 63. The Supreme Court characterized the lower court's

dismissal of the Government's action as the creation of a "coercive

sanction" on the Government's failure to meet certain statutory

timing directives. Id.

That is not the situation in this case. Plaintiffs do not

seek to construct any sanction for the Government's failure to

process their SIV applications, nor do they seek review of any

substantive decisions by the Government. Instead, Plaintiffs ask

the Court to do just what the APA and the Mandamus Act authorize:

issue an order to adjudicate their applications, whatever the

substantive results may be. See 5 U.S.C. § 706(1); 28 U.S.C.

§ 1361. Such an order would directly redress Plaintiffs' injury

caused by the Government's failure to decide.

In short, Plaintiffs have been injured by the failure to

obtain final decisions on their SIV applications, that injury is

-27- caused by the Government's failure to act, and the injury would be

redressed by an order from this Court. Accordingly, Plaintiffs

have made the injury, causation, and redressability showings

required to establish standing to pursue their claims. Lujan, 504

U.S. at 560-61.

2. The Doctrine of Consular Nonreviewability

As already discussed, the Government's major argument is that

Plaintiffs' applications have already been finally refused and the

doctrine of consular nonreviewability precludes any further review

of those decisions. This fact, the Government contends, deprives

Plaintiffs of standing to bring their claims, and deprives the

Court of jurisdiction to hear them.

The Government summarizes the core of its argument in its

opening brief:

Because each and every Plaintiff received final action under 8 U.S.C. § 120l(g), a valid statutory basis of ineligibility (see generally Ex. 1, Dybdahl Declaration (listing dates of refusals)), the doctrine of consular nonreviewability bars Plaintiffs' requests for review of final decisions of a consular officer. See Saavedra Bruno [v. Albright, 197 F. 3d 1153, 1156 (D. C. Cir. 1999)]. Thus, Plaintiffs' requests for adjudication of their applications, and communication of the results, can only be viewed as confused or disingenuous. See Compl. at Prayer for Relief ~ 3. Indeed, what the Plaintiffs truly appear to seek is judicial re- adjudication -- or review -- of these final decisions. The doctrine prohibits this.

Gov't's Mot. at 24.

-28- a. Status of Plaintiffs' Applications

The Government asserts, repeatedly and emphatically, that

"[i]n this case, each and every Plaintiff who made a visa

application appeared for a live interview to execute their visa

applications and received a final refusal under 8 U.S.C. § 1201(g)

and/or other grounds." Gov't's Mot. at 13; id. at 14 ("Each refusal

constituted a final decision as a matter of law."); id. ("like

Plaintiff Alpha, the other Plaintiffs have indeed received final

agency action denials of their visa applications under 8 U.S.C.

§ 1201(g)"); see also Gov' t' s Mot. at 23, 24. Accordingly, the

Government contends that "what the Plaintiffs truly appear to seek

is judicial re-adjudication--or review--of these final decisions."

Gov't's Mot. at 24 (emphasis in original).

However, the facts do not support the Government's repeated

and emphatic assertions.

As discussed in section I.B. above, Plaintiffs Alpna, Bravo,

and Delta have clearly received final decisions granting their SIV

applications. Thus, their claims are moot, and they have no

standing to litigate the case.

Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and Lima's

situations are not quite as simple. The Government contends that

these seven Plaintiffs have each received final refusals under

8 U.S.C. § 1201(g), which provides in relevant part that consular

-29- officers shall not issue visas if an applicant is ineligible to

receive a visa or the application fails to comply with applicable

statutory and regulatory provisions. ~, Gov' t' s Reply at 14

("all Plaintiffs who have made SIV applications have already

received final decisions" (emphasis in original)); Dybdahl Deel.

at ~~ 5, 11, 13, 14, 15, 17, 19.

Plaintiffs, on the other hand, contend that their

applications have not been refused, and instead, languish in an

intermediate and amorphous stage of "administrative processing."

See Pls.' Exs. E-K (screen shots of State Department's Case Status

Tracker showing these seven Plaintiffs' application status as

"administrative processing," as of September 24, 2015).

In support of their contention that their applications have

not received a final decision, Plaintiffs put forth a significant

body of evidence. 9 First and foremost, the Government's own Case

Status Tracker states that Plaintiffs' applications remained in

"administrative processing" as of September 24, 2015. Pls.'

Exs. E-K.

9 Again, while Courts do not ordinarily make factual findings at the motion-to-dismiss stage, Aktieselskabet, 525 F.3d at 17, the Court must do so here because the status of Plaintiffs' applications determines the Court's jurisdiction to entertain their claims. See Saavedra Bruno, 197 F.3d at 1162; Jerome Stevens Pharm., 402 F.3d at 1253-54 (holding that courts may look beyond pleadings in the complaint to ascertain their own jurisdiction) . -30- The Government responds that "administrative processing" is

not distinct from final refusal. Gov't's Mot. at 13-15. In the

Government's view, when an SIV applicant leaves a consular

interview without a visa in hand, his or her application has been

denied. Id. at 13. In support of its position, the Government

points to regulations and State Department guidance documents

indicating that consular officers must grant or deny a visa

application immediately once the application is complete. 22 C.F.R

§ 42.Sl(a). ("When a visa application has been properly completed

and executed before a consular officer . . the consular officer

must either issue or refuse the visa • 11 ) • The State

Department's Foreign Affairs Manual ("FAM") adds, "There is no

such thing as an informal refusal or a pending case once a formal

application has been made." 9 FAM 42.81 Nl.

Thus, according to the Government, because all visas are

either issued or denied immediately, any further processing of a

visa application is best viewed as a "reconsideration" of the

application's denial, rather than an additional step in the 14-step

process. See Gov't's Mot. at 15; Gov't's Reply at 7 ("It is to the

benefit of the visa applicant that, even after a final [§ 120l(g)]

refusal, a consular officer may continue to consider a case (i.e.,

to engage in further administrative processing) to potentially

further adjudicate the visa application. But a consular officer's

-31- discretionary decision to allow for further administrative

processing after a [§ 1201(g)] refusal does not create any new

legal duty, and does not give an applicant any basis to sue to

expedite that post-refusal processing.").

However, additional evidence presented by Plaintiffs

demonstrates that the Government's characterization of the visa

decision process conflicts with its own actual practices and

statements.

The dozen Joint Department of State / Department of Homeland

Security Reports to Congress ("Joint Reports") that Plaintiffs

have filed make clear that "administrative processing" is not a

discretionary opportunity for reconsideration. Pls.' Exs. L-W.

Rather, each and every one of the Joint Reports submitted makes

clear that "administrative processing" is a mandatory step in the

SIV application process. "Administrative processing" is not an

opportunity for reconsideration of a decision but is a pre-

requisite to reaching the decision itself--a crucial distinction.

Indeed, the Joint Reports describe "administrative

processing" as step 13 of the 14 required steps in the SIV process.

~, Pls.' Ex. Lat 3-4 [Dkt. No. 43-4]. The Joint Reports state

that at step 12, which is the interview stage, the "[a]pplicant is

interviewed by [a] consular officer on the scheduled appointment

date [,]" and "[a] dministrative processing is initiated following

-32- the interview." ~, id. At step 13 " [t] he applicant's case

undergoes administrative processing [.]" Id. At step 14, "[u] pon

completion of administrative processing, [the] applicant is

instructed to obtain a medical exam. The visa is issued if [the]

applicant is eligible." E.g. , id. Nowhere do the Joint Reports

indicate that a final decision is made before "administrative

processing" begins.

The Joint Reports go on to note that "[e]ven if an applicant

has acted promptly in each of the applicant-controlled steps that

precede step 13 of the SIV application process

administrative processing] , applications may be pending longer

than nine months for completion of administrative processing."

E.g., id. at 4-5. 10 The section concludes, "Although step 13 is

lengthy, process enhancements have resulted in improved

efficiency." ~, id. at 5. The other Joint Reports contain

substantially the same statements. See Pls.' Exs. L-W. 11

10According to the Joint Report for SIVs issued between April 1, 2014 and March 31, 2015, administrative processing took an average of 153 business days. Pls.' Ex.Lat 4.

11 The Joint Reports' invocation of the nine month time line is itself an indication that the Government understands "administrative processing" to constitute a pre-cursor to a final decision. RCIA § 1242 (c) (2) and AAPA § 602 (b) (4) (A) state that "all steps under the control of the respective departments incidental to the issuance of such visas, . , . should be completed not later than 9 months after the date on which an eligible alien submits all required materials to complete an application for such visa." -33- Defendants' formal representations to Congress in their Joint

Reports are simply incompatible with the notion that SIV applicants

in general, and Plaintiffs in particular, have already received

final decisions on their applications by the time they reach the

"administrative processing" stage.

Documents that the Government gives to SIV applicants

following their consular interviews also belie the Government's

contention that such "denials" are final or even any kind of

decision at all. For example, following their consular interviews,

Plaintiffs who applied through the Baghdad Embassy received a

notice stating "[w]e have refused your visa under section 22l(g)

of the Immigration and National Act [8 U.S.C. § 1201(g)] until: We

complete administrative processing. We will contact you when it is

finished." Iraqi Refusal Notice, Pls.' Ex. BB (emphasis added) .

This artfully worded letter appears calculated to obtain the

benefits of consular reviewability and to comply with internal

If administrative processing constituted reconsideration of SIV applications, as the Government claims, then time spent on such reconsideration would not count toward the nine-month target for completing "all steps . . . incidental to the issuance of [SIVs.]" Id. However, the Government does count delays due to "administrative processing" toward the nine-month timeline, see Pls.' Exs. L-W, which further indicates that "administrative processing" is part of the visa review process and not mere reconsideration of applications, which have already been denied.

-34- State Department regulations 1 2 by indicating that a decision has

been made. But the text that follows the word "until" makes clear

that no final decision on the application will occur until

"administrative processing" is complete . 1 3

The notice provided to applicants at the Kabul Embassy

similarly advises applicants that their application "needs further

administrative processing." See Afghan Refusal Notice, Pls.

Ex. CC. It states, "We cannot give you a definitive date when the

processing will be completed, and it will likely take several

months or more." Id. Again presumably attempting to trigger the

doctrine of consular nonreviewability, the Afghan Refusal Notice

also states that the Notice "constitutes a denial of a visa" under

8 U.S.C. § 1201(g). Id.

However, if "administrative processing" is a necessary step

in the SIV application process, the failure to receive a visa

before "administrative processing" is completed is not a denial at

all. In fact, if an applicant were somehow to receive a visa in

12 See 22 C.F.R § 42.Sl(a); 9 FAM 42.81 Nl.

13 Another district court has held that a similarly equivocal statement did not constitute a denial. Assad v. Holder, Civ. No. 2:13-00117, 2013 WL 5935631, at *l & *4 (D.N.J. Nov. 1, 2013) ("[L]etter [received by visa applicant that] stated that the case required 'Administrative Review' and that 'new information, when available, will be communicated to you in writing'" was held to "clearly indicate that the decision on [plaintiff's] visa [was] still pending and not final.").

-35- comply with internal State Department regulations 1 2 by indicating

that a decision has been made. But the text that follows the word

"until" makes clear that no final decision on the application will

occur until "administrative processing" is complete . 13

similarly advises applicants that their application "needs further

Ex. CC. It states, "We cannot give you a definitive date when the

processing will be completed, and it will likely take several

months or more." Id. Again presumably attempting to trigger the

doctrine of consular nonreviewability, the Afghan Refusal Notice

also states that the Notice "constitutes a denial of a visa" under

8 U.S.C. § 120l(g). Id.

in the SIV application process, the failure to receive a visa

before "administrative processing" is completed is not a denial at

all. In fact, if an applicant were somehow to receive a visa in

l2 See 22 C.F.R § 42·.s1(a) i 9 FAM 42.81 Nl.

13 Another district court has held that a similarly equivocal statement did not constitute a denial. Assad v. Holder, Civ. No. 2 : 13 - OO11 7 , 2 O13 WL 5 9 3 5 6 3 l , at * 1 & * 4 (D . N . J . Nov . l , 2 O13 ) ("[L]etter [received by visa applicant that] stated that the case required 'Administrative Review' and that 'new information, when available, will be communicated to you in writing'" was held to "clearly indicate that the decision on [plaintiff's] visa [was] still pending and not final.").

-35- advance of administrative processing, that step would be

premature. The Government has never argued that "administrative

processing" could be completed immediately after the interview.

Indeed the Joint Reports show that "administrative processing"

usually requires many months to finish. See e.g., Pls.' Ex. S (as

of July 15, 2014, the average Afghan SIV application spent 145

business days in "administrative processing").

The U.S. Embassy in Baghdad's website also demonstrates that

"administrative processing" does not mean "refused." A page on

that website informs SIV applicants of the meaning of what they

will see upon logging into the State Department's Consular

Electronic Application Center:

You will see one of the following status indicators appear:

Administrative Your case is currently Processing undergoing additional administrative processing. This processing can take several months to be completed~ You do not need to contact us. We will contact you with further instructions once this processing stage is finalized.

Issued - Your visa has been issued and we are preparing the return of your passport to you using the prepaid courier airway bill you provided to us during your interview. You will receive an email from us with your shipment tracking number as soon as your visa has been posted in the mail.

Refused - Your visa application has been refused. Please see the letter you received during your interview, or by mail, for further details.

-36- Pls.' Ex. X at 2 (available at http://iraq.usembassy.gov/ administrative-processing.html) . 14

Although Bravo' s claims are now moot, the facts of his

application are part of the record before the Court, and they shed

additional light on the SIV approval process. The Dybdahl

Declaration asserts that Bravo and his family appeared for a

consular interview on August 31, 2015, but that as of September 1,

2015, his "case remains refused under INA§ 221(g), 8 U.S.C. §

1201 (g) . " Dybdahl Deel. at ~ 7 . 15

The Second Dybdahl Declaration states that just three days

later, on September 4, 2015, a consular officer issued visas to

14 See also Pls.' Opp'n at 16 (citing other portions of the Baghdad Embassy's website stating, among other things, "We initially refuse most immigrant visa applications under [8 U.S.C. § 1201(g)]. There is usually no need to worry: it is almost always a temporary refusal." (emphasis in original) (quoting Pls.' Ex. AA (available at http://iraq.usembassy.gov/221g/what-does-a-22lg-refusal- mean.html)).

This statement from the Embassy website is not consistent with the Foreign Affairs Manual's statement that "[t]here is no such thing as an informal refusal or a pending case once a formal application has been made." 9 FAM 42. 81 Nl. An application that received only "temporary refusal" would seem to remain pending.

15It bears repeating that the Dybdahl Declaration also states that the applications of seven other Plaintiffs had been "refused" despite the Case Status Tracker's indication that they remained in "administrative processing." Dybdahl Deel. ~~ 5, 11, 13, 14, 15, 17, 19; Pls. Exs. E-K. The record does not include a Case Status Tracker entry for Bravo during this three-day period, but from Plaintiffs' allegations and the facts in the record, it would seem that between August 31 and September 4, 2015, Bravo's application was in "administrative processing." -37- Bravo and his family members. Second Dybdahl Deel. ~ 7. There is

no evidence in the record indicating that Bravo supplemented his

application in any way between August 31, 2015 and September 4,

2015.

In the Government's view, when Bravo left the Baghdad

Consulate on August 31, 2015, his visa had been finally refused

under 8 U.S.C. § 1201(g). In light of the Government's Joint

Reports, this characterization strains credulity. Gov't's Mot.

at 9. Plainly, Bravo's application--like those currently

undergoing "administrative processing"--remained under

consideration on August 31, 2015, and the Government only reached

a final decision on September 4, 2015.

Finally, if there was any doubt that "administrative

processing" precedes--and does not equate to--a final

determination, Plaintiffs' supplemental filing settles the

question. In response to an e-mail written "to follow up with [the

U.S. Embassy in Baghdad] on the status of [Ronaldo' s]

application[,]" the Immigrant Visa Unit of the Embassy replied:

Your client's case remains pending additional administrative processing, which must be completed before a final determination can be made on his Special Immigrant Visa (SIV) application. As soon as this administrative processing stage is finalized, we will immediately contact you with further details. No further action is required from your client at this time.

-38- Pls.' Supp. Deel. Ex. A (emphasis added). This e-mail shows, as

does the abundance of other evidence Plaintiffs provide, that any

Plaintiff with an application in "administrative processing" has

not yet received a final decision. 1 6

The Government argues that because 8 U.S.C. § 1201(g) places

the burden of demonstrating visa eligibility on the applicants, a

consular officer's failure to grant a visa following an interview

means that Plaintiffs have not met their burden. The Government's

argument, however, does not mesh with the SIV adjudication process

it has described to Congress. Pursuant to the 14 -step process

described above, .no SIV applicant could possibly receive a visa

16In a curious passage of its opening brief, the Government asserts that "[i] n an effort to manufacture ·jurisdiction, Plaintiffs equivocate, selectively substituting the term 'administrative processing' for adjudication where it suits them." Gov't's Mot. at 13. But, Plaintiffs have not created the term "administrative processing." The Government has told Plaintiffs in e-mails, letters, and the State Department's own Case Status Tracker that their applications remain in "administrative processing." Plaintiffs take "administrative processing" to mean what the Government says it means in its reports to Congress and on its Embassy website: one of 14 steps that must be completed before an SIV may be issued.

Indeed, it is the Government that equivocates: Sometimes "administrative processing" means "administrative processing"; other times it means finally adjudicated. The Government admits as much elsewhere in its briefing. See Gov't's Reply at 10 ("It is understandable as a practical matter that the State Department's references to 'administrative processing' in various contexts may create confusion. But the use of the term 'administrative processing' following a visa refusal does not, in any way, nullify the refusal or render it non-final as a matter of law.").

-39- before "administrative processing," and "administrative

processing" necessarily follows the consular interview. Thus, the

fact that an SIV applicant does not receive a visa after his or

her interview says nothing about whether he or she has met his or

her burden.

Despite the convincing evidence Plaintiffs cite to show that

Defendants have not finally adjudicated their SIV applications,

whi

contends that the Court should treat those applications as finally

denied as a matter of law. Gov't's Mot. at 25 ("Plaintiffs'

disagreement with the discretionary decisions of consular officers

does not change the fact that their applications were refused. As

a matter of law, the inquiry ends there."). The Court disagrees.

The Government contends that because regulations and State

Department guidance documents governing the visa process require

consular officers to "either issue or refuse the visa" when

presented with a complete application, the Court should treat

Plaintiffs pending applications as refused. Gov' t' s Mot. at 11

(quoting 22 C.F.R. § 42.81); see also 9 FAM 42.81 Nl. However, it

is clear that visa applications are not always being finally

refused in any meaningful sense immediately upon presentation of

-40- a completed application. 17 The Foreign Affairs Manual's statement

that "[t] here is no such thing as an informal refusal or a pending.

case once a formal application has been made[,]" 9 FAM 42.81 Nl,

simply does not accord with Defendants' practices, as the record

demonstrates.

The Government also cites 8 U.S.C. § 120l(g) itself for the

proposition that Plaintiffs have all received final refusals as a

matter of law. Gov' t' s Mot. at 14 ("Each refusal constituted a

final decision as a matter of law. See 8 U.S.C. § 1201(g) ."). But

§ 1201(g) merely contains the (expansive) criteria for refusing an

application; it does not establish when or whether, as a matter of

law, an application has been refused.

The Government next turns to case law, arguing that

"Plaintiffs fail to meet their burden to demonstrate standing

because there is a long line of cases explaining that non-resident

aliens lack standing to challenge the determinations associated

with their visa applications, which belong to the political and

not judicial branches of government." Gov't's Mot. at 16 (quoting

Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5 (D.D.C. 2009)).

17 Indeed, at least one other District Court has reached the same conclusion. See Schutz v. Secretary, Department of State, No. 6:11- cv-1296-0rl-31, 2012 WL 275521, at *2-4 (M.D. Fla. Jan. 31, 2012) (holding that 22 C.F.R. § 42.81 did not render application "refused" when applicant was not issued visa and only explanation was reference to broad statute stating many grounds for denial) .

-41- ·. The Government's argument--and the case it cites--rest upon

the premise that that Plaintiffs seek to challenge elements of a

final decision with which they disagree. Van Ravenswaay, 613 F.

Supp. 2d at 4 (holding that doctrine of consular nonreviewability

precluded action "seeking judicial review regarding the action of

the consul" when the consul had denied plaintiff's visa

application) . But for the reasons already stated, Plaintiffs

applications remain pending and have not been finally denied. Thus,

Van Ravenswaay offers no aid to the Government's case. Moreover, i Plaintiffs are not challenging the substance of any decisions made

by the Government.

The Government also makes much of a passage in Justice

Kennedy's concurrence in Kerry v. Din, 135 S.Ct. 2128, 2141 (2015),

in which he states that the Government satisfies any due process

duty owed to visa applicants and their citizen relatives when it

cites the statutory basis for a visa application's denial. But

again, the Government's reliance is misplaced. Plaintiffs do not

contend that they were entitled to a more fulsome explanation of

the Government's decision on each of their SIV applications

they merely claim that they are entitled to a decision. 18

18The Government also looks to Svensborn v. Keisler, No. C07-5003 TEH, 2007 WL 3342751, at *4 (N.D. Cal. Nov. 7, 2007) and Toor v. Clinton, No. 1:09CVF2790WWGSA, 2009 WL 1582900, at *4-*5 (E.D. Cal. June 4, 2009) for support. In both, the court considered whether the plaintiffs could bring an action to compel -42- The Government next claims that its denial of the SIV

applications of two Plaintiffs named in the initial Complaint, but

not in the Amended Complaint, somehow indicates that the remaining

Plaintiffs' applications have been denied:

Plaintiffs do not deny, and cannot deny, that since the outset of this action, two of the nin~ original Plaintiffs have been refused visas on terrorism-related grounds. See Dybdahl Deel. at 3, 4-5 (discussing visa refusals of Plaintiffs Charlie and Golf under 8 U.S.C. § 1182 (a) (3) (B)). Yet Plaintiffs' original Complaint, ECF No. 1, made the same arguments for Plaintiffs Charlie and Golf that Plaintiffs continue to make for all others in this case. But there is no question, and Plaintiffs make no argument, that Defendants can somehow ignore their statutory duty under 8 U.S.C. § 1182(a) including subsection (a) (3) (B) -- which prohibits the issuance of visas to, inter alia, persons who engage in terrorist activities.

Gov't's Reply at 5.

This argument makes little sense (and even tends to support

Plaintiffs' contentions). By omitting Golf and Charlie from their

Amended Complaint, Plaintiffs appear to agree that they received

final decisions on their applications after they filed their

initial Complaint and, as already noted, are not seeking review of

the substance of the decision. See Compl. (filed February 26,

2015); Dybdahl Deel. ~~ 8, 12 (Charlie's application denied under

reconsideration of their visa applications. In the case at hand, however, Plaintiffs do not ask for reconsideration because they have not yet received final decisions on their SIV applications. Accordingly, Svensborn and Toor are inapplicable. -43- § 1182(a) (3) (B) on May 7, 2015 and Golf's application denied under

§ 118 2 ( a) ( 3 ) ( B) on June 2 8 , 2 015 ) .

None of the remaining Plaintiffs, however, have received

final, terrorism-related refusals under 8 U.S.C. § 1182 (a) (3) (B).

Instead, as discussed at length above, they await final decisions

following "administrative processing." The Government's invocation

of Golf and Charlie serves only to highlight the contrast between

their final, terrorism-related refusals and the other Plaintiffs'

indefinite wait for the end of the SIV process.

By consigning applicants to "administrative processing," the

Government endeavored to enjoy the benefits of consular

nonreviewability, which is explained immediately below, without

having to report to Congress that it has denied the SIV

applications of many Iraqis and Afghans who supported the United

States' military efforts in their countries. The applications have

either been finally denied or they are still working their way

through the 14 steps the Government requires to be completed. The

Government cannot have it both ways. For the reasons already

stated, the Court concludes that the SIV applications of Ronaldo,

Foxtrot, India, Juliet, Alice, Hotel, and Lima remain in

"administrative processing," and have not been finally refused.

-44- b. Consular Nonreviewability

In its seminal case on consular nonreviewability, our Court

of Appeals explained the doctrine as follows:

In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers' actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.

Saavedra Bruno, 197 F.3d at 1159. In an earlier, terser statement

of the doctrine, the Court noted that "a consular officer could

make such a decision [to deny a visa] without fear of reversal

since visa decisions are nonreviewable." Castaneda-Gonzalez v.

Immigration & Naturalization Serv., 564 F.2d 417, 428 n.25 (D.C.

Cir. 1977) .

The doctrine preceded passage of the APA and constitutes an

exception to the presumption of judicial review as contemplated in

the APA. Saavedra Bruno, 197 F.3d at 1160-62. It sweeps broadly,

"appl [ying] even where it is alleged that the consular officer

failed to follow regulations, where the applicant challenges the

validity of the regulations on which the decision was based, or

where the decision is alleged to have been based on a factual or

legal error." Van Ravenswaay, 613 F. Supp. 2d at 4 (quoting Chun

v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002)); see also

-45- Gov't's Mot. at 25-26 (collecting cases showing the breadth of

unlawful actions by consular officers that are nevertheless

unreviewable by the district courts) .

"[T] he doctrine also applies where a plaintiff attempts to

circumvent the doctrine by claiming that he is not seeking a review

of the consular officer's decision, but is challenging some other,

related aspect of the decision." Malyutin v. Rice, 677 F. Supp. 2d

43, 46 (D.D.C. 2009), summarily aff'd No. 10-5015, 2010 WL 2710451

(D.C. Cir. July 6, 2010), cert. denied 131 S. Ct. 949 (2011).

However, as Plaintiffs point out, the doctrine of consular

nonreviewability is not triggered until a consular officer has

made a decision with respect to a particular visa application.

Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997); see also

Maramjaya v. U.S. Citizenship & Immigration Servs., No. CIV.A. 06-

2158 RCL, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008) (doctrine

of consular nonreviewabili ty did not apply when "case ha [d] not

procedurally progressed to the point where consular immunity would

bar judicial review" because plaintiff did not "challenge the visa

decision of any consular official" and instead challenged agency

actions antecedent to such a decision) . 19

19 In per curium affirmances that rely on Saavedra Bruno's statement of the doctrine of consular nonreviewability, our Court of Appeals has consistently relied on the consulate having reached a coricrete decision on the application at issue. See ~' Malyutin v. Rice, No . 1 o - 5 O15 , 2 O1 O WL 2 71o4 51 , at * 1 ( D . c . Cir . Ju 1 y 6 , 2 O1 O) -46- :·.

The doctrine applies only once a consular officer has made a

decision because it protects the prerogative of the political

branches to regulate the manner in which aliens may enter the

United States. Saavedra Bruno, 197 F.3d at 1159 ("it is . . . not

within the province of any court, unless expressly authorized by

law, to review the determination of the political branch of the

Government to exclude a given alien." (internal quotation marks

and citation omitted)) . When the Government simply declines to

provide a decision in the manner provided by Congress, it is not

exercising its prerogative to grant or deny applications but

failing to act at all. Id. at 1161 ("For [] aliens [seeking

admission to the United States] the procedure fixed by Congress is

deemed to be due process of law." (quoting 1961 U.S.C.C.A.N. 2950,

2976)).

("Although appellant asserts he is challenging a denial of his request for access to the state court rather than the denial of his application for a visa, determining whether appellant is entitled to damages from appellees would ultimately require reviewing the decision to deny appellant a visa. That decision is clearly unreviewable, however." (emphasis added) ) ; Semiani v. United States, 575 F.3d 715, 715 (D.C. Cir. 2009) ("The district court properly dismissed appellant's complaint for lack of subject matter jurisdiction because 'a consular official's decision to issue or withhold a visa is not subject to judicial review,' unless Congress indicates otherwise." (emphasis added)); see also Noble v. Ricciardonne, 161 F. App'x 22, 22-23 (D.C. Cir. 2005); Antonenko v. Dep't of State, No. 03-5327, 2004 WL 1080159, at *l (D.C. Cir. May 13 , 2 0 0 4 ) . ·

-47- Confirming that the doctrine is inapplicable in the absence

of a consular decision, the Court of Appeals for the Ninth Circuit

has held that visa applicants may challenge the Government's

suspension (rather than adjudication) of their visa applications.

Patel, 134 F.3d at 932. Noting that the Patel plaintiffs "[we]re

challenging the consul's authority to suspend their visa

applications, not challenging a decision within the discretion of

the consul[, the Court held that] jurisdiction exists to consider

whether the consulate has the authority to suspend the visa

applications." Id. (emphasis added) . "Normally a consular

official's discretionary decision to grant or deny a visa petition

is not subject to judicial review. However, when the suit

challenges the authority of the consul to take or fail to take an

action as opposed to a decision taken within the consul's

discretion, jurisdiction exists." Id. at 931-32. 20

20The Government contends that Patel, 134 F.3d 929 is inapplicable because that case involved consideration of a now-outdated regulation. Compare 22 C.F.R. § 42.81(a) (1997) ("When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer shall either issue or refuse the visa."), with 22 C.F.R. § 42.81 (2015) ("When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer must either issue or refuse the visa under INA 212 (a) or INA 221 (g) or other applicable law.") . The Government's argument is simply not convincing.

-48- District courts outside of the Ninth Circuit have reached the

same conclusion. See Am. Acad. of Religion v. Chertoff, 463 F.

Supp. 2d 400, 421 (S.D.N.Y. 2006) ("[T]he wide latitude given the

Executive to grant or deny a visa application does not

include the authority to refuse to adjudicate a visa

application."); Ceken v. Chertoff, 536 F. Supp. 2d 211, 216 (D.

Conn. 2008) (following Am. Acad. of Religion, 463 F. Supp. 2d at

420-21); see also Raduga USA Corp. v. U.S. Dep't of State, 440 F.

Supp. 2d 1140, 1146 (S.D. Cal. 2005) (following Patel, 134 F.3d at

932 and holding the doctrine of consular nonreviewability

inapplicable where "the consular official has not made any decision

in four years to date. That is the crux of this case.") . 21

However, Patel, as the Court reads it, stands for the proposition that the doctrine of consular nonreviewability does not apply unless a consular official has actually granted or refused an application. While revised § 42.8l's references to certain statutory bases for denial may clarify what the Government considers a refusal, they do not undermine the Patel court's conclusion that a decision to grant or refuse a visa application is a pre-requisite to application of the doctrine.

21The Government cites several cases from district courts in other circuits that indicate that the doctrine of consular nonreviewability would apply even in the absence of a final decision. ~, Saleh v. Holder, 84 F. Supp. 3d 135, 139 (E.D.N.Y. 2014 (rejecting plaintiffs' argument "that the doctrine does not apply to a request that a visa be adjudicated (as opposed to granted) within a reasonable period of time" because "courts lack subject matter jurisdiction to review the visa-issuing process"). These cases are unpersuasive given our Court of Appeals' characterization of the doctrine as applicable to "a consular official's decision to issue or withhold a visa" rather than the -49- In short, the doctrine holds only that "there may be no

judicial review of [] decisions to exclude aliens unless Congress

has expressly authorized this[,]" Saavedra Bruno, 197 F.3d at 1162

(emphasis added and internal quotation marks omitted), but does

not preclude Plaintiffs from challenging the Government's failure

to decide, Patel, 134 F.3d at 932. Accordingly, because the

applications of Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and

Lima remain in "administrative processing" and, therefore, have

not been finally refused, the doctrine of consular

nonreviewability does not bar their claims. See ~, Maramjaya,

2008 WL 9398947, at *4; Patel, 134 F.3d at 931-32.

c. Status of Kilo and Mike's applications

Plaintiff Kilo's application has not advanced as far as those

of other Plaintiffs and is not at the "administrative processing"

(13ili) step. The parties agree that he has not yet received COM

Approval, although he applied for it on August 25, 2014. Amended

Compl. ~ 33. The Government contends that Kilo lacks standing to

bring his claims because, not having submitted an SIV application,

he cannot claim that he is injured by the Government's failure to

adjudicate an SIV application. The Government oversimplifies

Kilo's situation.

failure to make a decision at all. Saavedra Bruno, 197 F. 3d at 1159 (emphasis added) . -50- Kilo has not submitted his full SIV application because he

must first obtain COM Approval confirming his "employment and

faithful and valuable service to the United States Government[.]"

APAA § 602(b) (2) (D) (i). Thus, like the other Plaintiffs, without

action by the Government, there is nothing Kilo can do to advance

his application.

Review of applications for COM Approval is non-discretionary.

APAA § 602(b) (2) (D) (i) states that the appropriate Chief of

.Mission, or her designee, "shall conduct a risk assessment of the

alien and an independent review of records maintained by the United

States Government or hiring organization or entity to confirm

employment and faithful and valuable service . . . . " Id. (emphasis

added) . Moreover, applicants denied COM Approval have appeal

rights specified in AAPA § 602 (b) (2) (D) (ii).

Finally, the Government does not raise its consular

nonreviewability argument with respect to Kilo's application.

Accordingly, the Court concludes that Kilo, like the

Plaintiffs mired in "administrative processing," has established

the Court's jurisdiction to hear his claims for an order compelling

the Government to act on his application within a reasonable time.

As to Mike's applicaiion, the State Department's Case Status

Tracker lists his application as "at NVC" (that is, at the

Department's National Visa Center). Pls.' Ex. D [Dkt. No. 44-3].

-51- ..

SIV applications are sent to the NVC at the second stage of the

SIV approval process, just before the interview stage begins. E.g.,

Pls.' Ex. Rat 3. Thus, Mike's application appears to simply be

pending at an earlier stage in the process than those of the

Plaintiffs stuck in "administrative processing."

The Government offers no reasons to treat Mike's application

differently from the others, and the Court finds no reason to do

so.

To summarize, Alpha, Bravo, and Delta have received final

decisions on their SIV applications, and thus, their claims are

now moot. Ronaldo, Foxtrot, India, Juliet, Alic~, Hotel, Lima,

Kilo, and Mike's SIV applications remain pending. These Plaintiffs

have suffered an injury in fact, as they must in order to have

standing to pursue this litigation, and their claims are not

subject to the doctrine of consular nonreviewability.

3. Judicially Manageable Standards to Enforce a Non- discretionary Duty

The Government next contends that Counts 3-6 must be dismissed

for lack of jurisdiction because Plaintiffs fail to identify a

non-discretionary duty owed them as well as judicially manageable

standards by which the Court may measure compliance with that duty.

The APA provides that "within a reasonable time, each agency

shall proceed to conclude a matter presented to it." 5 U.S.C.

§ 555(b). Thus, "[t]he APA imposes a general but nondiscretionary -52- duty upon an administrative agency to pass upon a matter presented

to it 'within a reasonable time,' 5 U.S.C. § 555(b), and authorizes

a reviewing court to 'compel agency action unlawfully withheld or

unreasonably delayed,' id. § 706 (1) ." Fort Sill Apache Tribe v.

Nat'l Indian Gaming Comm'n, No. CV 14-958, 2015 WL 2203497, at *4

(D.D.C. May 12, 2015) (citing Mashpee Wampanoag Tribal Council,

Inc. v. Norton, 336 F.3d 1094, 1099-1100 (D.C. Cir. 2003)).

The RCIA and AAPA provide additional guidance, instructing

that Defendants shall process SIV applications within nine months.

RCIA § 1242 (c) (1); AAPA §§ 602 (4) (A). The text of the statutes

makes clear that the nine-month timeline applies to "all steps"

under Defendants' control "incidental to the issuance of such [SIV]

visas[.]" Id. Thus, the timeline applies to each of the 14 steps

in the SIV adjudication process identified in the Joint Reports

that are within Defendants' control, including "administrative

processing" and "COM Approval." E.g., Pls.' Ex. Oat 3.

Simply put, the APA imposes a duty 22 on Defendants to act

within a "reasonable" time on Plaintiffs' applications, and the

22 The regulations on which the Government relies to bolster its argument that Plaintiffs' applications have been denied support the conclusion that the Government's duty to decide Plaintiffs' applications is non-discretionary. See Gov't's Mot. at 11 ("Upon receipt of a proper visa application, a consular officer adjudicating the application 'must either issue or refuse the visa."' (quoting 22 C.F.R. § 42.81)).

-53- RCIA and AAPA provide manageable standards (an explicit timeline)

by which a Court may assess the Government's compliance. Moreover,

our Court of Appeals has stated that:

[T] he time agencies take to make decisions must be governed by a rule of reason [and] 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[.]"

Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70,

80 (D.C. Cir. 1984). The RCIA and AAPA provide just such a

"timetable or other indication of speed[.]" Id. 23

Finally, the Government actually acknowledges that its duty

to eventually reach a decision on pending SIV applications is non-

discretionary. Gov't's Mot. at 36 ("[T]he only nondiscretionary

duty Defendants owed was to make a decision on the pending

23 Our Court of Appeals has recommended that courts consider the following complete list of factors: "(1) the time agencies take to make decisions m·ust be governed by a rule of reason; (2) 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 are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; ( 5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed." Telecommunications Research & Action Ctr., 750 F.2d at 80 (internal quotation marks and citations omitted) .

-54- applications of Plaintiffs . to issue or refuse their visas,

which they did.").

Nevertheless, the Government contends that the pace at which

it adjudicates SIV applications is entirely discretionary, citing

Beshir v. Holder, 10 F. Supp. 3d 165 (D.D.C. 2014) for support.

Admittedly, Beshir takes an expansive view of the

Government's power to decide certain immigration applications on

its own timeline. Beshir, 10 F. Supp. 3d at 174 (holding that "the

pace of adjudication is discretionary"). However, the Beshir court

based its conclusion on factors which are not present in this case.

First, the Beshir court relied on "[t]he absence of a

congressionally-imposed deadline or timeframe to complete the

adjudication of [immigrant] adjustment [of status] applications

[as] support[] [for] the conclusion that the pace of adjudication

is discretionary and thus not reviewable [.]" Id. at 176. In the

case at bar, Congress has provided a clear nine-month timeline for

the adjudication of SIV applications.

Second Beshir relied on relevant statutory language

permitting the Government to consider certain applications "in the

Secretary [of Homeland Security] or the Attorney General's

discretion and under such regulations as the Secretary or Attorney

General may prescribe." Id. at 173 (quoting 8 U.S.C. § 1159(b)).

The Government points to no similarly explicit grants of discretion

-55- applicable to Plaintiffs' applications. Thus, the Beshir Court's

reasoning is wholly inapplicable. 24

The Government also contends that the pace of adjudication of

SIV applications is discretionary because Congress provided for

the possibility that "national security concerns" might cause some

applications to require additional time. See RCIA § 1242 ( c) ( 2)

("Nothing in this section [which includes the nine-month timeline

quoted above] shall be construed to limit the ability of [the]

Secretary [of State and the Secretary of Homeland Security] to

take longer than 9 months to complete those steps incidental to

the issuance of such visas in high-risk cases for which

satisfaction of national security concerns requires additional

time."); see also AAPA § 602 (4) (B) (same).

As the Government reads them, the statutes' mention of

national security returns absolute discretion to the Government's

hands. Gov' t' s Mot. at 34 ("But the nine-month timeline is not

24 The Government points to Orlov v. Howard in support of its argument that the speed of application adjudication is discretionary, but that case also relies on the absence of a Congressionally-prescribed timeline, and therefore is also inapplicable. Orlov v. Howard, 523 F. Supp. 2d 30, 35 (D.D.C. 2007) ("In the absence of statutorily prescribed time limitations or statutory factors to guide users in crafting regulations for the adjustment process, it is difficult to determine how the pace of processing an application could be anything other than discretionary.").

-56- binding at any stage because the statute contemplates national

security delays, which are inextricably intertwined with

discretionary consular decisions. Delays related to national

security can affect processing and timing at any stage, rendering

the nine-month period merely aspirational.").

The RCIA and AAPA follow the same structure. Both statutes

introduce the nine-month timeline and define its application in

one paragraph and then introduce the safety valve for "high-risk

cases" in the very next paragraph. RCIA § 1242 (c) and AAPA §

602 (b) (4). The statute sets forth that additional time may be

permitted when national security issues arise. Obviously, Congress

would not have adopt~d this rule-and-exception structure if it

expected the exception to apply in every case. Moreover, the words

"high-risk bases" indicate a distinction between the ru~-of-the­

mill case, which must be adjudicated within nine months, and a

subset of cases presenting "national security concerns" that do

not arise in the typical application. RCIA § 1242 (c); AAPA §

602(b) (4). The Government's reading would allow the national

security exception to swallow the nine-month rule in its entirety.

Moreover, the presence of the national security exception

does not eliminate the judicially-manageable standards described

above. If the Government credibly claimed that a particular case

was "high-risk" because it presented "national security

-57- concerns[,]" RCIA § 1242(c)(2); AAPA § 602(b)(4)(B), a court

should, of course, appropriately defer to the Government's

expertise in the area of foreign policy and national security.

In this case, the Government has not even attempted to show

that Plaintiffs' applications fall into the "high-risk" exception.

To be sure, the Government has stated that national security

concerns are present in this case, ~' Gov't's Reply ("Nor does

anything in [a particular case that Plaintiffs cite] address the

direct question of national security interests, and terrorism-

related considerations, that are unmistakably present in this

case.") , but the Government has never specified in any way what

those concerns are.

The Government has suggested that because the applications of

Charlie and Golf, named as Plaintiffs in the i.ni ti al Complaint,

were refused on terrorism-related grounds, the current Plaintiffs'

applications are also suspect. Gov't's Reply at 1. However, the

Government never even describes what relationship Charlie and Golf

have to the other Plaintiffs that would cause such concern.

It is implied by the Government that "national security

concerns," as the term is used in RCIA § 1242 (c) (2) and AAPA

§ 602(b) (4) (B), are present in all SIV applications by Iraqis and

Afghan citizens. But such an interpretation conflicts with

Congress's statutory design .. The RCIA applies only to SIV

-58- applications by Iraqis, and the AAPA, likewise, applies only to

applications by Afghans. If Iraqi or Afghan citizenship were enough

to render an application "high-risk," the nine-month timeline

would, again, be rendered a dead letter.

For all of these reasons, the Court concludes that

adjudication of Plaintiffs' SIV applications within a reasonable

time is non-discretionary, that judicially manageable standards

exist to measure the Government's performance of its duty, and

that the national security exception does not undermine these

conclusions. Accordingly, the Court has subject matter

jurisdiction to hear Plaintiffs' claims.

4. The APA and the Mandamus Act

The APA, 5 U.S.C. § 706(1), authorizes the federal courts to

"compel agency action unlawfully withheld or unreasonably

delayed." The Supreme Court explained that § 706 (1) "empowers a

court only to compel an agency 'to perform a ministerial or non-

discretionary act,' or 'to take action upon a matter, without

directing how it shall act.'" Norton v. S. Utah Wilderness All.,

542 U.S. 55, 64 (2004) (quoting Attorney General's Manual on the

Administrative Procedure Act 108 (1947)).

Mandamus is "a drastic and extraordinary remedy reserved for

really extraordinary causes." Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367, 380 (2004). The Mandamus Act, 28 U.S.C. § 1361,

-59- provides district courts with jurisdiction to hear "action[s] in

the nature of mandamus to compel an officer or employee of the

United States or any agency thereof to perform a duty owed to the

plaintiff." Id. Courts may provide relief under the Act only when

the plaintiff shows: ( 1) the defendant has a clear duty to act;

(2) the plaintiff has a clear right to the relief he is seeking;

and (3) the plaintiff has no other adequate remedy available. See

Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).

The Government contends that Plaintiffs have failed to state

a claim under either the APA or the Mandamus Act for reasons

already rejected above: 1) that Plaintiffs' SIV applications have

already been finally refused; 2) that the doctrine of consular

nonreviewability bars their claims; and 3) that the nine-month

time lines provided in the RCIA and AAPA are discretionary. See

Gov't's Mot. at 27-36. The Government raised all these concerns in

the context of its jurisdictional arguments, and in the sections

above, the Court explains why none of them have merit: Plaintiffs'

SIV applications await further action by the Government and have

not been finally refused, see supra sections III.B.2.a. & c.; the

doctrine of consular nonreviewabili ty is inapplicable to

Plaintiffs' claims, see supra section III.B.2.b.; and the duty to

adjudicate Plaintiffs' applications within a reasonably period, as

-60- informed by the nine-month timelines in the RCIA and AAPA is non-

discretionary, see supra section III.B.3.

The Government also contends that Plaintiffs' claims must

fail because any delays in processing their applications are "based

on their own failures to sub~it all required to meet their burden

to demonstrate visa eligibility, at various stages of the process."

Gov't's Mot. at 34-35 (citing Dybdahl Deel.). This factual

assertion directly conflicts with facts pled in Plaintiffs'

Amended Complaint. See e.g. id. ~ 7 ("Following the grant of COM

Approval, each of the COM-Approved Plaintiffs duly completed all

other steps required of them by the SIV application process.").

The Court cannot consider the Government's conflicting factual

assertion in a motion to dismiss for failure to state a claim.

Aktieselskabet, 525 F. 3d at 17 (a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success[, and] . must assume all the allegations

in the complaint are true (even if doubtful in fact)").

For these reasons, Plaintiffs have properly stated their

claims under the APA, 5 U.S.C. § 706(1), and the Mandamus Act, 28

u.s.c. § 1361. ' C. Counts 1 & 2: Failure to Protect

RCIA § 1244(e) provides that "[t]he Secretary of State, in

consultation with the heads of other relevant Federal agencies,

-61- shall make a reasonable effort to provide an alien described in

this section who is applying for a special immigrant visa with

protection or the immediate removal from Iraq, if possible, of

such alien if the Secretary determines after consultation that

such alien is in imminent danger." AA.PA § 602 (b) (6) contains nearly

identical language with respect to Afghan SIV applicants.

Plaintiffs contend that this passage gives rise to two related

duties: "(1). [to] consult with the heads of other relevant Federal

agencies to assess whether the threats faced by Plaintiffs are

imminent; and, if so, (2) make a reasonable effort to provide

protection or the immediate removal of Plaintiffs from such

threats, if possible." Pls.' Opp' n at 28. Counts 1 and 2 of

Plaintiffs' Amended Complaint allege that Defendants have failed

to fulfil these duties. Arn. Cornpl. ~~ 205-218.

As already discussed, the APA empowers reviewing courts to

delayed[.]" 5 u.s.c. § 706(1) . 2 5 Citing§ 706, Plaintiffs ask the

25 Plaintiffs' Amended Complaint also cites the APA' s grant of judicial authority "[to] hold unlawful and set aside agency action, findings, and conclusions found to be . . . without observance of procedure required by law." Amended Cornpl. ~~ 209, 216 (quoting 5 U.S.C. § 706(2)). However, Plaintiffs' Opposition relies only on § 706(1) to rebut the Government's arguments in favor of dismissing Counts 1 and 2.

-62- Court to compel Defendants to undertake the duties described in

RCIA § 1244(e) and AAPA § 602(b) (6).

The Government contends that this Court is without

jurisdiction to hear Claims 1 and 2. 2 6 The Court agrees for the

following reasons.

"[A] claim under section 706 (1) can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency

action that it is required to take." People for the Ethical

Treatment of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1098

(D.C. Cir. 2015) (emphasis and brackets omitted) (quoting Norton

v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)). Moreover,

the APA expressly precludes judicial review of agency action that

is "committed to agency discretion by law." 5 U.S.C. § 701(a) (2).

Agency action is committed to agency discretion by law when "the

statute is drawn so that a court would have no meaningful standard

26The Government also contends -- for the first time in its Reply brief -- that Plaintiffs lack standing to assert claims under RCIA § 1244(e) and AAPA § 602(b) (6) because these provisions contemplate individuals with unadjudicated SIV applications, and Plaintiffs' applications have been finally refused. Ordinarily, an argument not raised in an opening brief is forfeited, Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008), but because Plaintiffs' lack of standing would deprive this Court of jurisdiction, the Court must consider the question. Fed. R. Civ. P. 12(h) (3); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). However, the question is easily answered: As the Court concludes below, Plaintiffs' applications have not been finally adjudicated, so the Government's late challenge to Plaintiffs' standing fails. -63- against which to judge the agency's exercise of discretion [.]"

Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011) (quoting

Heckler v. Chaney, 470 U.S. 821, 830 (1984)). If no "judicially

manageable standard" exists by which to judge the agency's action,

meaningful judicial review is unavailable under the APA. Id.

The statutory duties that Plaintiffs cite are of the type

described in Sierra Club. Plaintiffs point to no standards by which

the Court could assess whether Defendants have adequately assessed

the dangers that Plaintiffs face.

The language of RCIA § 1244(e) and AAPA § 602(b) (6) strongly

indicates that significant discretion has been left to the

Secretary of State as to how to carry out his mandate. Under the

statutes the Secretary "shall make a reasonable effort" to provide

protection or removal to SIV applicants. Id. What efforts are

reasonable will depend upon "complex concerns involving security

and diplomacy" far beyond the expertise of the Court but

squarely within that of the Secretary. Legal Assistance for

Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular

Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997) .· In· addition,

Plaintiffs fail to point to any standards by which the Court may

assess whether Plaintiffs are in "imminent danger" or whether the

Secretary has adequately acted "in consultation with the heads of

-64- other relevant Federal agencies." RCIA § 1245 (e) ; AAPA

§ 602 (b) (6).

I .1 True, the RCIA and AAPA both use the word "shall," which

generally indicates an "affirmative command." See Nat'l Ass'n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007)

("The word 'shall' generally indicates a command that admits of no

discretion on the part of the person instructed to carry out the

directive" (internal citations omitted)) . But Congress surrounded

"shall" with a profusion of other words that connote discretion:

The Secretary . shall make a reasonable effort to provide an alien described in this section who is applying for a special immigrant visa with protection or the immediate removal from Iraq, if possible, of such alien if the Secretary determines after consul tat ion that such alien is in imminent danger.

RCIA § 1245(e) (emphasis added); accord AAPA § 602(b) (6).

In order to enforce the statute's command, the Court would

have to (1) assess whether the Secretary's efforts were

"reasonable", (2) decide whether any efforts other than removal

would provide sufficient "protection", (3) determine whether

protection or removal were "possible," and (4) pass judgment on

the Secretary's final "determin[ation]" about the imminence of any

danger facing a particular SIV applicant. Id. Plaintiff points to

no standa.rds by which the Court might assess these decisions.

-65- whether and how to protect or remove SIV applicants from their

countries) are themselves discretionary.

In short, under RCIA § 1244 (e) and AAPA § 602 (b) (6), "the

agency is entrusted by a broadly worded statute with balancing

complex concerns involving security and diplomacy" that are

"peculiarly with the agency's expertise [.]" Vietnamese Asylum

Seekers, 104 F.3d at 1353. Counts 1 and 2 of Plaintiffs' Amended

Complaint must be dismissed.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs' Motion to File a

Supplemental Declaration shall be granted, and the Government's

Motion to Dismiss shall be granted with respect to Counts 1 & 2

and denied with respect to Counts 3-6 (except insofar as those

claims relate to Alpha, Bravo, and Delta). Accordingly, Counts 1

& 2 shall be dismissed and Alpha, Bravo, and Delta's claims shall

be dismissed as moot.

January 28, 2016 Gla~s~~~ United States District Judge

Copies to: attorneys on record via ECF

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