Rai v. Biden

• Court: District Court, District of Columbia
• Decided: September 27, 2021
• Docket: Civil Action No. 2021-0863
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) KAROLINA RAI et al., ) ) ) Plaintiffs, ) ) v. ) Civil Action No. 21-cv-863-TSC ) JOSEPH R. BIDEN, in his official capacity ) as President of the United States of America, ) et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs are 2021 diversity visa program selectees and their derivative beneficiaries who

reside in Europe, South Africa, Namibia, and China. Plaintiffs allege that the State Department

and its Kentucky Consular Center unlawfully implemented two Presidential Proclamations to

suspend the processing, adjudication, and issuance of their 2021 diversity visa applications.

Plaintiffs have moved for a preliminary injunction, ECF No. 8, asserting that if the State

Department does not issue Plaintiffs visas before midnight on September 30, 2021, the State

Department cannot issue those visas without a court order.

The government has moved to dismiss for lack of subject matter jurisdiction. ECF No.

38. For the reasons stated below, the court will GRANT in part and DENY in part Defendants’

motion to dismiss and will GRANT in part and DENY in part Plaintiffs’ motion for preliminary

injunction.

1 I. BACKGROUND

A. The Diversity Visa Program

Congress created the diversity visa program under the Immigration and Nationality Act

(“INA”) to allow for more immigration to the United States from countries with traditionally low

rates of immigration. See 8 U.S.C. §§ 1153(c)(1)(B)(ii), 1153(c)(1)(E)(ii). The program permits

the State Department to issue up to 50,000 visas to individuals from specified countries.1 8

U.S.C. § 1151(e). Millions of people enter the lottery every year. See U.S. Dep’t of State,

Diversity Visa Program, DV 2019-2021: Number of Entries During Each Online Registration

Period by Region and Country of Chargeability.2 Those selected for the program are not

guaranteed to receive a visa—only the opportunity to apply for one. A successful lottery

applicant is eligible to receive a visa only during the fiscal year in which she applied and was

selected. 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f). If the selectee does not receive a visa by

the end of the fiscal year, then they are out of luck: “Because the diversity visa program restarts

each fiscal year, consular officers may not issue diversity visas after midnight on September 30

of the” fiscal year in which the visa applicant was selected. Id.

B. The Adjudication Process

The diversity visa program is administered at the State Department’s Kentucky Consular

Center (“KCC”). See 9 Foreign Affairs Manual (“FAM”) 502.6-4(c)(1)(a). After successful

1 The statute makes available up to 55,000 diversity visas annually, but 5,000 of those are reserved for aliens covered by the Nicaraguan Adjustment and Central American Relief Act of 1997. See Pub. L. No. 105–100, 111 Stat. 2193 (1997). 2 Available at https://travel.state.gov/content/dam/visas/Diversity-Visa/DVStatistics/DV- applicant-entrants-by-country-2019-2021.pdf.

2 applicants are notified of their selection and visa number, they must then submit a DS-260,

Immigrant Visa and Alien Registration Application, and various supporting documents to the

KCC. See 9 FAM 502.6-4(d)(1)(a), (b). When the KCC confirms that an applicant has properly

completed and submitted the DS-260 and necessary paperwork, the applicant will be considered

“documentarily qualified.” 9 FAM 502.6-4(c)(2)(c). Then, as determined by the State

Department’s monthly visa bulletin, the “KCC will schedule” the selectee for an immigrant visa

interview at a United States embassy or consulate “when his or her regional lottery rank number

is about to become current.” 9 FAM 502.6-4(d)(2). A consular officer’s decision to “issue or

refuse an immigrant visa application must be based on a personal interview, during which the

consular officer must ensure that all required documentation has been provided, that there is a

legal basis for the applicant to immigrate, and there are no ineligibilities that would affect the

visa issuance.” 9 FAM 504.1-3(f). “A visa can be refused only upon a ground specifically set

out in the law or implementing regulations.” 22 C.F.R. § 40.6.

C. Presidential Proclamations and State Department Guidance

Between January and May 2020, then President Trump issued five Presidential

Proclamations containing similar provisions that suspended the entry of certain immigrants and

non-immigrants from specific countries. Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31,

2020) (China); Proclamation No. 9992, 85 Fed. Reg. 12855 (Feb. 29, 2020) (Iran); Proclamation

No. 9993, 85 Fed. Reg. 15045 (Mar. 11, 2020) (26 European countries in Schengen Area);

Proclamation No. 9996, 85 Fed. Reg. 15341 (Mar. 14, 2020) (United Kingdom and Ireland);

Proclamation No. 10041, 85 Fed. Reg. 31933 (May 24, 2020) (Brazil). In his first days in office,

President Biden issued Proclamation 10143, which extended the suspension on entry of certain

3 immigrants and nonimmigrants from the Schengen Area, United Kingdom, Ireland, and Brazil,

and added South Africa to the list. Proclamation No. 10143, 86 Fed. Reg. 7467 (Jan. 25, 2021).

The five “Regional Proclamations” restrict the entry of persons who, within 14 days of

seeking entry to the United States, were physically present within various COVID-19 global

“hotspots.” But they also contain exceptions to that prohibition on entry, including an exception

for those persons whose entry the Secretary of State deems to be “in the national interest.” See,

e.g., Proclamation No. 9984; Proclamation No. 10143. Beginning on March 20, 2020, the State

Department interpreted the Regional Proclamations to suspend not only “entry” of immigrants,

but also the issuance of visas, unless an applicant (1) was eligible for an exception to the

Regional Proclamations (such as the national interest exception), and (2) qualified for mission

critical or emergency designations under the State Department’s guidance. See ECF No. 8-4,

Mot. for PI, Ex. 3, 20 STATE 42180 ¶ 4. See also ECF No. 8-6, Mot. for PI, Ex. 5, 20 STATE

61886 ¶ 1. That suspension policy applied to diversity visas because the State Department did

not consider those visas to be in the national interest or meeting a mission critical or emergency

designation. See ECF No. 8-5, Mot. for PI, Ex. 4, 20 STATE 54966, Mission-Critical Visa

Services to Include IR1s and IR2s.

On May 1, 2020, Defendants released the Diplomacy Strong Framework (“Diplomacy

Strong”), which was implemented on July 14, 2020. The Diplomacy Strong guidance required a

phased resumption of routine visa services, but the suspension of diversity visas remained in

place. See U.S. Dep’t of State, Suspension of Routine Visa Services; 20 STATE 65080 ¶¶ 1-8.

In response, the KCC stopped processing diversity visa applications and stopped

scheduling eligible applicants for interviews at embassies and consular posts, instead dedicating

4 its resources to processing visa applications that were not subject to the suspension policy. See

ECF No. 41, Hr’g Tr. at 21-23 (June 10, 2021).

On April 8, 2021, eight days after Plaintiffs filed their lawsuit, the Secretary of State

updated the State Department’s policy with regards to the Regional Proclamations. ECF No. 30-

1, Defs.’ Opp’n, Ex. A. The Secretary announced a national interest exception to the

Proclamations and that “Immigrant Visa processing posts may now grant immigrant . . . visas to

applicants otherwise eligible, notwithstanding” the Regional Proclamations. Id. As a result, the

KCC began processing diversity visa applications and scheduling qualified applicants for

interviews, and embassies and consular posts began adjudicating and issuing diversity visas. See

ECF No. 30-2, Defs.’ Opp’n., Ex. B. at 4.

D. Plaintiffs’ Lawsuit and the Government’s Motion to Dismiss

Plaintiffs are 60 selectees of the 2021 diversity visa program and their 107 derivative

beneficiaries (their spouses and children under 21 years old).3 The sixty named Plaintiffs reside

in countries subject to Proclamations 9984 and 10143. ECF No. 22, First Amended Compl.

(“FAC”) ¶ 2. They were selected in the 2021 diversity visa lottery and subsequently applied for

2021 diversity visas. Id. ¶¶ 18-19. All are “documentarily qualified” and have had current visa

numbers since May 2021 or earlier. Id. ¶¶ 19, 508-509. As of August 13, 2021, twenty-two of

them have had their applications adjudicated. See ECF No. 49, Joint Status Report at 5-6 (Aug.

13, 2021). The other thirty-eight, as of August 13, 2021, were still waiting. Id. The parties

3 This case was originally brought by seventy-one Plaintiffs and their derivative beneficiaries, but on June 29, 2021, the court dismissed eleven Plaintiffs from the case without prejudice. ECF No. 47, Order of Partial Dismissal.

5 agree that of those thirty-eight, twenty-five are unlikely to receive an interview before the end of

the fiscal year. Id. at 6.

Plaintiffs claim that Defendants implemented a regional “No-Visa Policy” suspending the

processing, adjudication, and issuance of diversity visas for persons subject to Proclamations

9984 and 10143. Plaintiffs argue that the regional No-Visa Policy violates the Administrative

Procedures Act (“APA”), constitutional separation of powers principles, and the nondelegation

doctrine, and that they are entitled to relief under the Mandamus Act. In response, Defendants

contend that the court should deny Plaintiffs’ motion for preliminary injunction and should

instead dismiss this case because Plaintiffs have not suffered a concrete injury, present only moot

issues, and cannot question the executive branch’s authority to restrict immigrants from entering

the country.

II. LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) “presents a

threshold challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.

1987). The “core component of standing is an essential and unchanging part of the case-or-

controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

The plaintiff bears the burden of establishing the elements of standing, id. at 561, and each

element “‘must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation,’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan, 504 U.S. at

561). The plaintiff must “show a ‘substantial probability’ that it has been injured, that the

defendant caused its injury, and that the court could redress that injury.” Sierra Club v. E.P.A.,

292 F.3d 895, 899 (D.C. Cir. 2002) (citation omitted). 6 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the

legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). A claim is plausible

when the factual content allows the court to “draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. The court can consider “the facts alleged in the

complaint, any documents either attached to or incorporated in the complaint and matters of

which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117

F.3d 621, 624 (D.C. Cir. 1997).

A preliminary injunction is an “extraordinary” remedy that “should be granted only when

the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v.

Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail on a motion for preliminary injunction,

the movant bears the burden of showing that: (1) “he is likely to succeed on the merits”; (2) “he

is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of

equities tips in his favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008). Where, as here, the federal government is the

opposing party, the balance of equities and public interest factors merge. See Nken v. Holder,

556 U.S. 418, 435 (2009). Courts in this jurisdiction evaluate the four preliminary injunction

factors on a “sliding scale”—if a “movant makes an unusually strong showing on one of the

factors, then it does not necessarily have to make as strong a showing on another factor.” Davis

v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). The weighing of the

four factors is within the district court’s discretion. See Davis, 571 F.3d at 1291. 7 III. ANALYSIS

Plaintiffs allege that Defendants violated the APA seven different ways, violated the

Mandamus Act, and violated separation of powers principles and the nondelegation doctrine.

Because Defendants’ justiciability arguments overlap with Plaintiffs’ likelihood of success on

the merits of their motion for preliminary injunction, the court will merge its analysis of the two

motions where applicable.

A. Likelihood of Success on APA Claims

1. Justiciability

To establish likelihood of success on the merits, Plaintiffs must first establish that their

claims are justiciable. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).

Defendants argue that Plaintiffs cannot establish justiciability because they do not have standing,

their claims are moot, and the court lacks subject matter jurisdiction.

i. Standing

To establish standing, a plaintiff bears the burden of showing “(1) [she] has suffered a

concrete and particularized injury (2) that is fairly traceable to the challenged action of the

defendant and (3) that is likely to be redressed by a favorable decision.” Elec. Priv. Info. Ctr. v.

Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 376–77 (D.C. Cir.

2017) (cleaned up). On a motion to dismiss, the court must evaluate whether the plaintiffs have

established standing pursuant to Federal Rule of Civil Procedure 12(b)(1). Food & Water

Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). Where the plaintiffs have moved for

a preliminary injunction, they must show “a substantial likelihood of standing under the

heightened standard for evaluating a motion for summary judgment.” Elec. Priv. Info. Ctr., 878

8 F.3d at 377 (cleaned up). As a result, the plaintiffs cannot rest on mere allegations and instead

must “set forth by affidavit or other evidence specific facts that, if taken to be true, demonstrate a

substantial likelihood of standing.” Id. (cleaned up). Only one plaintiff need meet this standard.

Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014).

In support of their motion, Plaintiffs submit declarations from thirty-two of the original

seventy-one Plaintiffs. Among them is a declaration from Plaintiff Katsiaryna Klimiankova,

who is an accountant and resides in Belarus. ECF No. 8-31, Mot. for PI, Ex. 30, Klimiankova

Decl. ¶¶ 4, 7. Despite the fact that Klimiankova timely submitted all documents and has had a

current visa number since April 2021, the KCC has not scheduled her consular interview. See

FAC ¶¶ 321-22; Klimiankova Decl. ¶ 5; U.S. Dep’t of State, Visa Bulletin For March 20214;

Joint Status Report at 2 (Aug. 13, 2021). The parties agree that Klimiankova will likely not

receive an interview before the end of the fiscal year and her application will expire on October

1. Joint Status Report at 5-6 (Aug. 13, 2021).

Injury. Defendants argue that Plaintiffs lack standing because neither Klimiankova nor

any other Plaintiff has suffered a concrete or particularized injury. Def. Opp’n at 18. The court

disagrees. Klimiankova, like the other Plaintiffs, asserts a procedural injury—the withholding of

statutorily mandated, non-discretionary review and adjudication of her visa applications. This

procedural deprivation is paired with a concrete interest—Klimiankova’s interest in having her

visa application adjudicated before September 30, 2021. Together, the alleged procedural

violation and concrete interest are sufficient to establish injury. See Smirnov v. Clinton, 806 F.

4 Available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa- bulletin-for-march-2021.html.

9 Supp. 2d 1, 10 (D.D.C. 2011) (finding standing “based upon the plaintiffs’ lost opportunity to

have their visa applications—some of which have already been submitted—fully processed and

considered”), aff’d, 487 F. App’x 582 (D.C. Cir. 2012); Gomez v. Trump (Gomez I), 485 F. Supp.

3d 145, 171 (D.D.C. 2020).

Defendants argue that a recent opinion in this district, Gjoci v. Department of State,

supports their position. See ECF No. 50, Notice of Supp. Authority (citing Gjoci v. Dep’t of

State, No. 1:21-CV-00294-RCL, 2021 WL 3912143, at *1 (D.D.C. Sept. 1, 2021)). The facts of

Gjoci, however, differ from the facts of this case in material ways. In Gjoci, plaintiffs filed their

operative complaint roughly four months after the alleged procedural violation had ended.

Gjoci, 2021 WL 3912143, at *4-5. Courts ordinarily assess standing from the time that the

operative complaint was filed, see G&E Real Est., Inc. v. Avison Young-Washington, D.C., LLC,

168 F. Supp. 3d 147, 159–60 (D.D.C. 2016), so the plaintiffs in Gjoci were unable to establish

any concrete injury, 2021 WL 3912143, at *12. Instead, they alleged that the past procedural

violation “increased the risk” that they would suffer a future injury. Id. To sustain such a claim,

plaintiffs must satisfy a “strict” standard of showing both “(i) a substantially increased risk of

harm and (ii) a substantial probability of harm with that increase taken into account.” Food &

Water Watch, Inc., 808 F.3d at 914. Applying that standard, the court in Gjoci held that

plaintiffs failed to show a substantial likelihood of standing. 2021 WL 3912143, at *14.

Unlike Gjoci, here, the alleged violation was ongoing when Plaintiffs filed their

Complaint on March 31, 2021.5 At that time, the alleged injury—the withholding of statutorily

5 Plaintiffs amended their Complaint on April 13, 2021, after the Secretary issued the April 8, 2021 exception, but did so at the court’s direction to correct typographic errors that were not material to the case. ECF No. 29, Hr’g Tr. (April 13, 2021) (instructing Plaintiffs to “refile 10 mandated, non-discretionary review and adjudication of Plaintiffs’ visa applications—was

apparent, and so the court need not consider whether the past procedural violation “increased the

risk” that they would suffer a future injury.

Moreover, even under the “strict” standard for an “increased risk of harm” injury,

Plaintiffs have demonstrated that at least one of them has a sufficiently imminent injury in fact.

As discussed above, Klimiankova had submitted all necessary documents and had a current visa

number in April 2021, making her eligible for an interview with roughly six months remaining in

the fiscal year. Yet the embassy in Warsaw, where Klimiankova’s application would be

adjudicated, did not issue any diversity visas while the regional No-Visa Policy was in place.

See U.S. Dep’t of State, Monthly Immigrant Visa Issuance Statistics, Fiscal Year 2021.6 Not

until May 2021, after the Secretary of State excepted Plaintiffs from the regional No-Visa Policy,

did the Warsaw embassy begin to adjudicate diversity visas. Id. By then it was too late.

Although Defendants continue to work through the significant backlog created during the first

six months of the year, they concede that Klimiankova will not receive an interview by the

September 30 deadline. Joint Status Report at 2 (Aug. 13, 2021). Klimiankova has thus

established both a substantially increased risk of losing out on her right to a visa adjudication and

a substantial probability of such harm. See Filazapovich v. Dep’t of State, No. 21-CV-00943

[errata] as an amended complaint even though it doesn’t make any substantive changes”). Because Plaintiffs did not “voluntarily” amend their Complaint, the court still considers standing from the March 31 filing date. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007) (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.”). 6 Available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/immigrant- visa-statistics/monthly-immigrant-visa-issuances.html.

11 (APM), 2021 WL 4127726, at *13 (D.D.C. Sept. 9, 2021) (“With less than thirty days remaining

before the end of the fiscal year, and no immediate prospect of an interview in sight, [the

plaintiff] has established both a substantially increased risk of losing out on her right to a visa

adjudication and a substantial probability of such harm.”). On September 30, the door will close

for good on Klimiankova’s opportunity to have her visa application adjudicated. Her injury is

not speculative and is indeed imminent. Consequently, Plaintiffs have shown a concrete and

particularized injury.

Causation. Because Plaintiffs assert a procedural violation, they can establish standing

“without meeting all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at

572 n.7. A plaintiff asserting a procedural violation must show “a causal connection between the

government action that supposedly required the disregarded procedure and some reasonably

increased risk of injury to its particularized interest.” Fla. Audubon Soc. v. Bentsen, 94 F.3d 658,

664 (D.C. Cir. 1996). To show a causal connection, Plaintiffs must show that it is substantially

probable, but not certain, that the procedural violation “created a demonstratable risk, or caused a

demonstratable increase in an existing risk” of injury to at least one plaintiff. Id. They “need not

demonstrate that but for the procedural violation the agency action would have been different.”

Mendoza, 754 F.3d at 1010.

Plaintiffs have successfully shown a causal connection between the alleged procedural

violation and their particularized injuries. From October 2020 through March 2021, while the

regional No-Visa Policy was in effect, Defendants issued just six diversity visas from the

embassies and posts subject to Proclamations 9984 and 10143. See U.S. Dep’t of State, Monthly

Immigrant Visa Issuance Statistics, Fiscal Year 2021. From April through July 2021, after the

Secretary announced the April 8, 2021 exception, those same embassies and posts issued 645 12 diversity visas collectively, averaging roughly 161 diversity visas per month. See id. Thus,

during the first six months of the year, those embassies and posts could have issued

approximately 966 diversity visas (161 x 6) but for the regional No-Visa Policy. It “requires no

imaginative leap” to say that this shortfall “created a demonstratable risk, or caused a

demonstratable increase in an existing risk” that Defendants would run out of time to adjudicate

Plaintiffs’ applications by the September 30 deadline. Iyengar v. Barnhart, 233 F. Supp. 2d 5,

12-13 (D.D.C. 2002).

Defendants blame COVID-19 restrictions at U.S. embassies and consular posts for the

delay, claiming that those restrictions are the true cause of Plaintiffs’ injuries. The COVID-19

pandemic no doubt has greatly impacted Defendants’ operations and the efficiency with which

the KCC, embassies, and posts are able to process, adjudicate, and issue visas. But Defendants’

argument is ultimately unpersuasive. From October 2020 through March 2021, while the

processing of diversity visas was suspended, U.S. embassies and consular posts were able to

process and adjudicate thousands of non-diversity visas despite the restrictions caused by

COVID-19. U.S. Dep’t of State, Monthly Immigrant Visa Issuance Statistics, Fiscal Year 2021.

Even factoring in the impacts of the pandemic, Defendants could have issued far more diversity

visas had they not imposed the suspension policy. And in any event, Plaintiffs need not

demonstrate that the absence of the 6-month suspension would “necessarily have made a

difference. All that is necessary is that they show ‘that the procedural step was connected to the

substantive result.’” Iyengar, 233 F. Supp. 2d at 13 (quoting Sugar Cane Growers Co-op. of Fla.

v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)). Plaintiffs have done so, and they clear the

causation bar.

13 Redressability. To establish redressability, a plaintiff must show that it is “‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

26, 38 (1976)). Causation and redressability are “closely related” concepts, which typically

“overlap as two sides of a . . . coin.” Dynalantic Corp. v. Dep’t of Def., 115 F.3d 1012, 1017

(D.C. Cir. 1997).

As in similar cases in this district, Plaintiffs have stated a plausible claim for relief. See,

e.g., Gomez v. Trump (Gomez II), 490 F. Supp. 3d 276, 284 (D.D.C. 2020) (citing Almaqrami v.

Pompeo, 933 F.3d 774, 780 (D.C. Cir. 2019)) (explaining that when the “plaintiff files suit and

the court grants some relief—but not the visa—before October 1 . . . the court might lawfully

take steps [after the fiscal year has ended] to compel the government to process the plaintiff’s

application and issue her a diversity visa anyway”); Filazapovich, 2021 WL 4127726, at *13.

An order reserving visa numbers for adjudication after the fiscal year deadline “could result in

Plaintiffs receiving a visa and immigrating to the United States,” and that “is sufficient to

preserve the court’s subject matter jurisdiction over Plaintiffs’ claims.” Gomez v. Biden (Gomez

III), No. 20-CV-01419 (APM), 2021 WL 3663535, at *9 (D.D.C. Aug. 17, 2021) (citing

Almaqrami, 933 F.3d at 783). The court therefore has power to redress Plaintiffs’ injuries.

ii. Mootness

“Federal courts lack jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies.” Iron Arrow Honor Soc'y v. Heckler, 464

U.S. 67, 70 (1983). “Even where litigation poses a live controversy when filed,” a federal court

must “refrain from deciding it if events have so transpired that the decision will neither presently

affect the parties’ rights nor have a more-than-speculative chance of affecting them in the 14 future.” Am. Bar Ass'n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). Generally, voluntary

cessation of challenged activity does not moot a case, unless “the party urging mootness

demonstrates that (1) ‘there is no reasonable expectation that the alleged violation will recur’ and

(2) ‘interim relief or events have completely or irrevocably eradicated the effects of the alleged

violation.’” Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir.

1997) (quoting Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)).

Defendants argue that this case is moot, but they have not shown that their voluntary

cessation of the procedural violation— the Secretary’s April 8, 2021 national interest

exception—“completely and irrevocably eradicated the effects of the alleged violation.” Los

Angeles Cnty., 440 U.S. at 631. Defendants’ own statistics instead support the opposite

conclusion. Defendants admit that as many as twenty-five Plaintiffs will not have the

opportunity to make a visa application before September 30, 2021. See Joint Status Report (Aug.

13, 2021), Updated Miles Decl. ¶ 7. In other words, while the national interest exception

restarted the visa processing, it did nothing to alleviate the six-month backlog that built up while

the suspension policy was in effect, and which continues to harm Plaintiffs.

But the court agrees with Defendants that the twenty-two Plaintiffs who have already had

their 2021 diversity visa applications adjudicated do not present a live case or controversy.

Indeed, Plaintiffs concede this point. See Hr’g Tr. at 8-14 (June 10, 2021). Accordingly, the

twenty-two remaining Plaintiffs whose applications have already been adjudicated will be

dismissed from the case.

iii. Subject Matter Jurisdiction

Next, Defendants reframe Plaintiffs’ lawsuit as one challenging the Executive Branch’s

power “to govern entry of foreign nationals.” ECF No. 38-1, Mot. to Dismiss at 24. According 15 to Defendants, Plaintiffs “seek to diminish the President’s ability to exercise his broad authority

under 8 U. S. C. § 1182(f) to exclude non-citizens.” Id. at 25.

To be sure, § 1182(f) grants the President “‘ample power’ to impose entry restrictions in

addition to those elsewhere enumerated in the INA.” Trump v. Hawaii, 138 S. Ct. 2392, 2408

(2018). Indeed, the statute “exudes deference to the President in every clause.” Id. But

Plaintiffs do not challenge the President’s authority to exclude non-citizens from entering the

country. Instead, Plaintiffs present a different question: can Defendants halt the processing and

issuance of diversity visas for applicants living in particular regions? A visa is a travel document

allowing a person to access a port of entry and request permission to enter the United States, “but

it does not guarantee the right to enter the country.” Gomez I, 485 F. Supp. 3d at 158 (citing

Almaqrami, 933 F.3d at 776). While Proclamations 9984 and 10143 address the entry of

immigrants into the country, they say nothing about the issuance and adjudication of visas.

Defendants ignore “the basic distinction between admissibility determinations,” i.e., entry

determinations, and “visa issuance that runs throughout the INA.” Trump, 138 S. Ct. at 2414 n.3

(collecting statutory examples).

Courts in this district have consistently allowed lawsuits to proceed to the merits when, as

here, the lawsuit challenges a suspension of visa issuance. See, e.g., Gomez I, 485 F. Supp. 3d at

176; Filazapovich, 2021 WL 4127726, at *13. So too, courts have jurisdiction over lawsuits

concerning consular officials’ failure to adjudicate and issue visas. See, e.g., Moghaddam v.

Pompeo, 424 F. Supp. 3d 104, 114 (D.D.C. 2020); Gomez I, 485 F. Supp. 3d at 176; Nine Iraqi

Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F.

Supp. 3d 268, 290 (D.D.C. 2016) (“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 16 applications but failing to act at all.”). As in those cases, the court here has subject matter

jurisdiction to consider the merits of Plaintiffs’ lawsuit.

2. Likelihood of Success on Merits of APA Claims

Having determined that Plaintiffs present justiciable and reviewable claims under the

APA, the court turns to Plaintiffs’ likelihood of success on the merit of those claims.

i. Regional No-Visa Policy is Not in Accordance with Law and in Excess of Statutory Authority

Plaintiffs assert that Defendants’ regional No-Visa Policy is “‘not in accordance with

law’ and ‘in excess of statutory authority.’” See Pl. Mot. at 19–21. They contend that (1) neither

the Proclamations nor statute nor State Department implementing regulations give Defendants

such power, and so (2) Defendants’ regional No-Visa Policy unlawfully usurps consular officers’

sole and express statutory authority to issue visas to qualifying applicants. See id.

Defendants respond that nothing prohibits them from suspending the processing and

issuance of diversity visas. See Defs.’ Opp’n at 21–22. They contend that the only statutory

mandate is § 1153(e)(2), which provides that “immigrant visa numbers . . . shall be issued” in a

“random order established by the Secretary of State.” 8 U.S.C. § 1153(e)(2). Neither of these

arguments are persuasive.

First, Defendants’ argument is contradicted by §§ 1202(b) and 1202(d) of the INA, which

requires that all immigrant and nonimmigrant visa applications “shall be reviewed and

adjudicated by a consular officer.” 8 U.S.C. § 1202(b), (d) (emphasis added). See also Gomez I,

485 F. Supp. 3d at 198 n.23 (rejecting the State Department’s argument that they have no

“nondiscretionary duty to afford Plaintiffs the opportunity to apply for immigrant visas at

consular interviews”). Second, § 1153(e)(2), the provision upon which Defendants rely, is

17 inapplicable to the controversy at issue. That provision applies to the issuance of visa numbers

through the annual diversity visa lottery, which selects 100,000 winners who are eligible to apply

for one of the 50,000 visas. Smirnov v. Clinton, 487 F. App’x 582, 583 (D.C. Cir. 2012).

Contrary to Defendants’ suggestion, § 1153(e)(2) does not mandate that the processing,

adjudication, and issuance of diversity applications be so random that a Secretary could lawfully

suspend the program for indefinite periods of time without statutory justification.

To be clear, there is no statutory requirement that every available diversity visa be issued

each year. But that does not mean that the State Department can decide to suspend the diversity

program for six months of the fiscal year, thereby drastically reducing the number of diversity

visa applications that could be processed, adjudicated, and issued. Doing so would plainly

frustrate Congress’s intent to make available 50,000 diversity immigrant visas each year. See

Gomez I, 485 F. Supp. 3d at 196; In re People’s Mojahedin Org. of Iran, 680 F.3d at 837; 8

U.S.C. §§ 1151(e), 1153(c)(1)(A) (providing that persons “subject to the worldwide level

specified in section 1151(e) of this title for diversity immigrants shall be allotted visas each fiscal

year” pursuant to a detailed statutory scheme); H.R. Rep. No. 101-723, pt. 1 (1990) (finding that

it is important “to promote diversity in [the] immigration system”).

Accordingly, the court concludes that Plaintiffs are likely to succeed on the merits of

their claim that Defendants’ regional No-Visa Policy is “not in accordance with law” and “in

excess of statutory . . . authority.” 5 U.S.C. § 706(2). See Gomez I, 485 F. Supp. at 199.

ii. Regional No-Visa Policy is Arbitrary and Capricious

Next, Plaintiffs allege that Defendants’ regional No-Visa Policy is arbitrary and

capricious because it lacks any reasoned explanation and the State Department failed to consider

the consequences the policy would impose on diversity visa selectees. See FAC at 70-71, 73-74; 18 Pl. Mot. at 20-21. Defendants did not respond to this allegation, and the court will therefore treat

it as conceded. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (explaining

that if a party files an opposition addressing only some of the movant’s arguments, the court may

treat the unaddressed arguments as conceded). A district court in this jurisdiction has already

rejected Defendants’ “illogical foisting” of the Regional Proclamations onto diversity visa

processing, adjudication, and issuance. See Gomez v. Trump, 486 F. Supp. 3d 445, 450 (D.D.C.

2020), modifying, Gomez I, 485 F. Supp. 3d at 145. As in that case, here, Defendants’ policy

stands on a faulty legal premise and lacks adequate rationale. Thus, Plaintiffs are likely to

succeed on their argument that the policy is arbitrary and capricious.

iii. Notice-and-Comment Rulemaking Claim is Moot

Plaintiffs ask the court to enjoin Defendants’ regional No-Visa Policy, arguing that

Defendants’ implementation of the Proclamations was unlawfully promulgated without notice-

and-comment rulemaking. See Compl. ¶ 596; Mot. for PI at 21-23. According to Plaintiffs,

Defendants did not give notice regarding the policy and failed to give interested parties an

“opportunity to participate in the rule making” process. Id. at 21 (citing 5 U.S.C. § 553(c)).

It is undisputed that Plaintiffs are now exempt from that policy and their visa applications

are being processed, adjudicated, and issued. See Joint Status Report (Aug. 13, 2021).

Consequently, the court cannot enjoin the policy, and Plaintiffs’ notice-and-comment challenge

is moot. See Almaqrami, 933 F.3d at 783; Filazapovich, 2021 WL 4127726, at *24.

iv. Defendants Unreasonably Delayed Processing and Adjudication of Plaintiffs’ Visa Applications

In assessing whether Defendants unreasonably delayed processing and adjudicating

Plaintiffs’ diversity visa applications, the court analyzes the six factors identified in

19 Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70, 79–80 (D.C. Cir.

1984):

(1) The time agencies take to make decisions must 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.

In re People’s Mojahedin Org. of Iran, 680 F.3d at 836-37 (internal quotation marks omitted).

“[T]he central question is whether the agency’s delay is so egregious as to warrant mandamus.”

Id. at 837 (internal quotation marks omitted).

Defendants contend that, applying the TRAC factors, the court should find that Plaintiffs

have failed to state a valid claim. For reasons explained below, the court disagrees and finds that

Plaintiffs are likely to prevail on their unreasonable delay claim.

Factors one and two. The INA provides a “clear ‘indication of the speed with which it

expects the agency to proceed in’ processing diversity lottery selectees’ visa applications.”

Gomez I, 485 F. Supp. 3d at 196 (quoting TRAC, 750 F.2d at 80). That statute “sets an absolute,

unyielding deadline by which selectees must receive their visas.” Id. The September 30

deadline is specific and concrete, which “manifests Congress’s intent that the State Department

undertake good-faith efforts” to adhere to it. Filazapovich, 2021 WL 4127726, at *18. It also

“supplies content for the TRAC rule of reason.” Gomez I, 485 F. Supp. 3d at 196. Under that

rule of reason, the State Department cannot “effectively extinguish the diversity program” for six

months and let pending diversity visa applications expire without plainly frustrating

20 congressional intent to make available 50,000 diversity immigrant visas each year. Id. (citing

Mojahedin, 680 F.3d at 837); accord In re Ctr. for Auto Safety, 793 F.2d 1346, 1353 (D.C. Cir.

1986) (agency’s failure to meet statutory deadline was unreasonable because it eviscerated “the

very purpose of the regulation”).

The court recognizes that, in determining how quickly to process diversity visa

applications, Defendants must balance other considerations, such as local health and safety

conditions at foreign embassies and consular posts. But Congress’s instructions are the “most

important” consideration in the TRAC analysis. Filazapovich, 2021 WL 4127726, at *18. When

Congress set the September 30 deadline, it “undoubtedly knew the enormous demands placed

upon the Secretary.” People’s Mojahedin, 680 F.3d at 837. Knowing that the Secretary would

have “other, competing draws on its resources,” Congress nevertheless established the fiscal year

deadline in concrete terms, and the fact that the State Department has competing priorities does

not permit Defendants to freeze the diversity visa program for six months of the fiscal year based

on an erroneous interpretation of the law. Filazapovich, 2021 WL 4127726, at *18. So, factors

one and two favor Plaintiffs.

Factors three and five. The third and fifth TRAC factors concern human health, welfare,

and the nature and extent of the interests prejudiced by delay. Plaintiffs argue that they have lost

gainful employment, educational opportunities, and fear that they will lose their chance to

immigrate to the United States. See Mot. for PI at 32. Plaintiffs maintain that they have “sold

property, foregone employment opportunities, or borrowed large amounts of money to afford

their immigration to the United States.” Id. (citing Compl., Ex. 9-32). Defendants

“acknowledge that aspects of these factors may tip in favor of Plaintiffs.” Defs.’ Opp’n at 24.

21 Plaintiffs have established “dire” prejudice. They “‘risk losing their (likely) once-in-a-

lifetime opportunity to immigrate to the United States’ and have demonstrated how delays in visa

adjudication threaten their welfare.” See Filazapovich, 2021 WL 4127726, at *19 (quoting

Gomez III, 2021 WL 3663535, at *19). Defendants ask the court to also weigh “the public health

risks” facing consular officials and to respect the State Department’s “duty to protect its

employees.” Defs.’ Opp’n at 25. But “Defendants’ decision not to process diversity visas for

the first [six] months of the fiscal year was not taken in consideration of employees’ health—it

was taken based on an erroneous interpretation of the law.” Filazapovich, 2021 WL 4127726, at

*19. For instance, despite credible health risks imposed by COVID-19, consular officials subject

to Proclamations 9984 and 10143 continued to process and adjudicate non-diversity visas during

the six-month suspension. See Pl. Reply at 16; U.S. Dep’t of State, Monthly Immigrant Visa

Issuance Statistics, Fiscal Year 2021. Defendants offer no explanation as to why COVID-19

health risks were unique to processing and adjudicating diversity visas. Accordingly, factors

three and five also favor Plaintiffs.

Factor four. Next, the court considers the effect of expediting delayed action on agency

activities of a higher or competing priority. Defendants argue that in a world of limited

resources, processing and adjudicating visas is a zero-sum game, such that any order prioritizing

Plaintiffs’ applications necessarily moves other applicants “back in line.” Defs.’ Opp’n at 25.

The court recognizes that the “Department has had to make difficult decisions about how to

manage” a “backlog of 600,000 prospective immigrant visa applications.” Defs.’ Opp’n at 25.

However, “the State Department’s lack of resources to adequately confront that obstacle is not

dispositive here.” Filazapovich, 2021 WL 4127726, at *20.

22 The court’s conclusion that Defendants’ six-month cessation is significantly likely to

constitute unreasonable delay “is not a simple reorganization of the Department’s priorities, but a

rectification of Defendants’ decision to flout the INA by sitting on its hands.” Filazapovich, 2021

WL 4127726, at *20 (citing Gomez III, 2021 WL 3663535, at *19; Mashpee Wampanoag Tribal

Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)). Moreover, the court’s ruling

does not require the State Department to drop everything and process Plaintiffs’ diversity visa

applications. Rather, it directs the State Department to reserve a finite number of visa numbers

for processing and adjudication after September 30, thus mitigating any negative impact on

agency activities. Consequently, the court finds that the fourth factor also favors Plaintiffs.

Factor six. Neither party carries the day on the sixth factor, which concerns agency

impropriety. Plaintiffs summarily argue that Defendants’ apparent disregard for the impending

statutory deadline shows impropriety. See Compl. ¶ 628. Defendants deny, without elaboration,

that they have not “engaged in impropriety.” See Defs.’ Opp’n at 26.

The court finds that this factor is neutral, and, in any event, it “need not find any

impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably

delayed.” Gomez III, 2021 WL 3663535, at *20 (quoting TRAC, 750 F.2d at 80).

Ultimately, after weighing the TRAC factors, the court finds that it is likely that

Defendants unreasonably delayed processing Plaintiffs’ diversity visa applications when they

declined to process any diversity visas for the first six months of the Fiscal Year. Plaintiffs are

therefore likely to succeed on their unreasonable delay claim.

23 v. Defendants Unlawfully Withheld Processing and Adjudicating of Plaintiffs’ Visa Applications

Having found it likely that Defendants unreasonably delayed processing Plaintiffs’

diversity visa applications, the court now considers whether Plaintiffs are likely to succeed on

their claim that Defendants unlawfully withheld Plaintiffs applications. To establish an unlawful

withholding claim, Plaintiffs must show that the “agency failed to take a discrete agency action

that it is required to take.” Norton, 542 U.S. at 64. Defendants argue that Plaintiffs are unlikely

to succeed on this claim because Defendants do not have a nondiscretionary duty to process

diversity visas.

As previously explained, 8 U.S.C. § 1202(b) imposes a nondiscretionary duty on

Defendants to adjudicate diversity visas. See Filazapovich, 2021 WL 4127726, at *20. And, for

the reasons discussed above, Defendants failed to adjudicate diversity visas in contravention of

that nondiscretionary duty. Accordingly, the court concludes that Plaintiffs are likely to succeed

on the merits of their unlawful withholding claim.

vi. Exclusion of 2021 Diversity Visa Applications from Mission Critical and Emergency Designations

Plaintiffs challenge the State Department’s “mission critical” and “emergency” guidance,

arguing that diversity visa applicants were excluded from the “class of ‘mission critical’

services” in a manner that was arbitrary, capricious, and unlawful under the APA. See Mot. for

PI at 23.

On March 20, 2020, when the State Department suspended routine visa services at all

U.S. embassies and consulates but permitted posts to continue providing “emergency and

mission critical visa services” as resources allowed, the processing or adjudication of diversity

visa applications did not fall within the “emergency” or “mission critical services” exception. 24 See Gomez I, 485 F. Supp. 3d at 198; Mot. for PI, Ex. 4, State Department Memo regarding

Mission-Critical Visa Services to Include IR1s and IR2s at 1. On May 1, 2020, Defendants

released the Diplomacy Strong Framework, which required a phased resumption of routine visa

services, but the suspension of diversity visas continued. See U.S. Dep’t of State, Suspension of

Routine Visa Services; 20 STATE 65080 ¶¶ 1-8.

The mission critical policy and Diplomacy Strong guidance, however, were replaced with

new guidance in November 2020. See 20 STATE 110220, Expanded Guidance on Prioritization

for the Phased Resumption of Routine Visa Services (Nov. 12, 2020) (“[P]osts are no longer

obligated to be in a specific Diplomacy Strong phase to adjudicate a particular visa class as

described in prior guidance.”). Not only had the mission-critical and Diplomacy Strong policies

ended months before Plaintiffs sued, but Plaintiffs also fail to show how those policies had any

real impact on the 2021 diversity visa program when the policies were only in effect during the

first month of the 2021 fiscal year. Thus, the court will grant Defendants’ motion as to the State

Department’s mission critical guidance policy. See Filazapovich, 2021 WL 4127726, at *21

(citing True the Vote, Inc. v. IRS, 831 F.3d 551, 561 (D.C. Cir. 2016) (“As applied in the context

of injunctive litigation, if there remains no conduct to be enjoined, then normally there is no

relief that need be granted, the case or controversy has ceased, and the jurisdiction of the court

has expired under Article III.”)).

vii. Implementation of National Interest Exception

Plaintiffs’ final APA claim did not appear in their Complaint. For the first time, in their

motion for preliminary injunction, Plaintiffs challenge Defendants’ implementation of the

national interest exception for persons subject to the Regional Proclamations, claiming that

25 implementation was final agency action, not committed to agency discretion, and was arbitrary,

capricious, and contrary to law. See Mot. for PI at 27-30.

A plaintiff’s request for preliminary injunctive relief must mirror the allegations and

relief sought in the complaint. Gjoci, 2021 WL 2530651, at *5 (citing De Beers Consol. Mines

v. United States, 325 U.S. 212, 220 (1945)). A “proper motion for a preliminary injunction seeks

to enjoin the action that the complaint alleges is unlawful prior to the completion of the

litigation, and without such a connection between the claim and requested injunction, there is

simply no jurisdictional basis for the Court to grant preliminary relief.” Bird v. Barr, No. 19-

CV-1581, 2020 WL 4219784, at *2 (D.D.C. July 23, 2020) (emphasis added) (citing Pac.

Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015); Omega

World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997)).

Because Plaintiffs’ raise this challenge only in their motion, the court finds that Plaintiffs

have failed to state a valid claim against Defendants’ implementation of the national interest

exception. An order enjoining the national interest exception would not alleviate the harm

Plaintiffs allege in their Complaint: that Defendants have refused to carry out their

nondiscretionary duty of processing and adjudicating diversity visas. Rather, were the court to

enjoin the national interest exception, Defendants’ regional No-Visa Policy would remain

unscathed. Accordingly, the court will dismiss Plaintiffs’ challenge to the national interest

exception. See Gjoci, 2021 WL 2530651, at *2 (dismissing motion for preliminary injunction

where “the mismatch between the request for injunctive relief and the complaint complicated the

Court’s ability to ‘meaningfully assess’ plaintiffs’ entitlement to injunctive relief”) (cleaned up).

26 B. Likelihood of Success on Mandamus Act Claim

Mandamus relief is proper only if: “(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to

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

Mandamus relief here is unwarranted. “[T]he standards for obtaining relief” under §

706(1) of the APA and the Mandamus Act are “essentially the same,” Viet. Veterans of Am. v.

Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010), and relief under the Mandamus Act is only

warranted when “there is no other adequate remedy available to the plaintiff,” Fornaro, 416 F.3d

at 69. The court has already found that Plaintiffs are likely to succeed on their § 706(1) claims,

and with that remedy in hand, Plaintiffs are unlikely to succeed on the merits of their Mandamus

Act claim. See Filazapovich, 2021 WL 4127726, at *24; Gomez I, 485 F. Supp. 3d at 198.

Therefore, the court will deny Plaintiffs’ request for preliminary relief under the Mandamus Act.

C. Likelihood of Success on Separation of Powers and Nondelegation Doctrine Claims

Plaintiffs also assert that Proclamations 9984 and 10143 usurp the authority delegated to

the President under the INA, and therefore violate constitutional separation of powers principles

and the nondelegation doctrine. FAC ¶¶ 642–650.

In support of this claim, Plaintiffs point to Doe v. Trump, 418 F. Supp. 3d 573, 589-93

(D. Or. 2019), in which the plaintiffs advanced the same separation of powers and nondelegation

doctrine arguments that Plaintiffs now urge the court to heed. Id. Plaintiffs, however, ignore the

fact that the Ninth Circuit reversed their case in chief. See Doe #1 v. Trump, 984 F.3d 848 (9th

Cir. 2020), vacated sub nom. Doe #1 v. Biden, 2 F.4th 1284 (9th Cir. 2021) (vacating as moot).

In doing so, the Ninth Circuit relied on the Supreme Court’s decision in Trump v. Hawaii and

27 upheld the President’s broad ability to exercise discretion under 8 U. S. C. §1182(f). Id. at 864

(citing Trump, 138 S. Ct. at 2408). The District Court in Gomez came to the same conclusion

regarding the separation of powers and nondelegation challenges brought against two similar

Presidential Proclamations. See Gomez I, 485 F. Supp. 3d at 186. Plaintiffs do not address these

cases, nor do they point to any other authority that supports their position. The court will

therefore dismiss Plaintiffs’ separation of powers and nondelegation doctrine claims for failure to

state a valid claim for relief.7

D. Remaining Factors Governing Preliminary Relief

Having found that Plaintiffs are likely to succeed on certain of their APA claims, the

court now turns to the remaining factors governing preliminary injunctive relief.

1. Irreparable Harm

A party seeking preliminary injunctive relief must show that they imminently will be

irreparably harmed by the challenged action or inaction. The “injury must be both certain and

great, actual and not theoretical, beyond remediation, and of such imminence that there is a clear

and present need for equitable relief to prevent irreparable harm.” Mexichem Specialty Resins,

Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (cleaned up).

Plaintiffs have made a clear showing of irreparable harm. As other courts in this district

have found, the loss of the “‘opportunity to immigrate to the United States through the diversity

7 Defendants also move dismiss President Biden as a named Defendant, arguing that Plaintiffs have failed to state a valid claim for relief against the President because courts do not have jurisdiction to enjoin a President in the performance of his official duties. Mot. to Dismiss at 20. Plaintiffs do not offer any argument in response, see generally ECF No. 44, Pls.’ Opp’n to Mot. to Dismiss, and the court will treat the issue as conceded, Wannall, 775 F.3d at 428. 28 visa program’ constitutes an irreparable injury.” Filazapovich, 2021 WL 4127726, at *24

(quoting Gomez I, 485 F. Supp. 3d at 200). See also P.K. v. Tillerson, 302 F. Supp. 3d 1, 10

(D.D.C. 2017) (granting injunctive relief considering “the potential irreparable harm” of not

having their visas adjudicated). Plaintiffs are in imminent risk of permanently losing their

opportunity to have their diversity visa applications adjudicated, “and that permanent loss is

irreparable.” Filazapovich, 2021 WL 4127726, at *24.

2. Balance of Equities and Public Interest

Finally, Plaintiffs must demonstrate that the balance of equities tips in their favor and that

an injunction is in the public interest. Winter, 555 U.S. at 20. The balance of equities and the

public interest “merge when the Government is the opposing party.” Nken, 556 U.S. at 435.

The court recognizes the difficulty of having to manage a substantial backlog of visa

applications, but the public and Plaintiffs have a countervailing interest “in having governmental

agencies abide by the federal laws that govern their existence and operations.” League of

Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks

omitted). While “the public certainly has an interest in Defendants processing other types of

visas in addition to diversity visas, it also has an interest in diversity visa applicants,” like

Plaintiffs, “having their applications considered.” Filazapovich, 2021 WL 4127726, at *25.

Moreover, “although the COVID-19 pandemic has disrupted visa processing writ large, diversity

visa applicants are in a unique position among visa applicants because their eligibility for a visa

ends on the last day of the fiscal year.” Id. Given these demands, the court finds that the balance

of the equities and the public interest favor injunctive relief in this case.

29 E. Remedy

Given the Defendants’ refusal to process or adjudicate diversity visa applications,

Plaintiffs ask the court to order Defendants to expeditiously process and adjudicate Plaintiffs’

visas and reserve Plaintiffs’ visa numbers through the pendency of the litigation. In response,

Defendants caution that any order moving Plaintiffs to the front of the visa adjudication line

would be unfair to other applicants.

An injunction “is an exercise of discretion and judgment, often dependent as much on the

equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee

Assistance Project, 137 S. Ct. 2080, 2087 (2017). Nevertheless, an “injunction must be narrowly

tailored to remedy the specific harm shown.” Neb. Dep’t of Health & Hum. Servs. v. Dep’t of

Health & Hum. Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (internal quotation marks omitted).

As Justice Blackmun observed “in dissent but apparently expressing the view of all nine

justices,” Nat’l Mining Ass’n, 145 F.3d at 1409, when a single Plaintiff establishes that she was

injured by the policy, Plaintiffs may obtain “relief that affects the rights of parties not before the

court.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting).

Moreover, the “section of the APA governing preliminary relief, 5 U.S.C. § 705,

authorizes “relief from agency action for any person otherwise subject to the action, not just as to

plaintiffs.’” Gomez I, 485 F. Supp. 3d at 203 (quoting District of Columbia v. USDA, 444 F.

Supp. 3d 1, 48 (D.D.C. 2020). As the court in Gomez explained, “that provision allows ‘the

reviewing court’ to ‘issue all necessary and appropriate process to postpone the effective date of

an agency action or to preserve status or rights pending conclusion of the review proceedings’ to

‘the extent necessary to prevent irreparable injury.’” Id. (quoting 5 U.S.C. § 705). That section

“therefore ‘authorizes courts to stay agency [action] pending judicial review,’ not just to enjoin 30 their application to the injured parties before the court.” Id. (quoting Mexichem, 787 F.3d at 562)

(Kavanaugh, J., dissenting in part). See also In re GTE Service Corp., 762 F.2d 1024, 1026

(D.C. Cir. 1985) (recognizing that § 705 supplies “statutory authority to stay agency orders

pending review in this court”). By the same token, § 705’s grant of power to “issue all necessary

and appropriate process” includes “the power to compel agency inaction when necessary ‘to

preserve status or rights pending conclusion’ of the action.” Gomez I, 485 F. Supp. 3d at 203

(quoting 5 U.S.C. § 705).

In recent analogous cases, courts have ordered defendants to expeditiously process and

adjudicate diversity visas until the end of the fiscal year and reserve visa numbers for processing

and adjudication beyond the statutory deadline, both for the plaintiffs as well as non-plaintiff

visa applicants who suffered the same injury. See Gomez I, 485 F. Supp. 3d at 204; Gomez II,

490 F. Supp. 3d at 295; Filazapovich, 2021 WL 4127726, at *26. This approach produces an

equitable result. For example, were the court to limit relief only to Plaintiffs, and not include

other diversity visa applicants whose applications were suspended by Defendants’ regional No-

Visa policy, then “thousands of individual lawsuits would likely follow, and the potentially

disparate outcomes of those cases would result in widespread administrative confusion. That

cannot be the outcome that Defendants desire.” Gomez I, 485 F. Supp. 3d at 204. See also

Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (discussing “our country’s strong interest in

the uniform application of immigration law and policy”).

Therefore, the court will order Defendants to expeditiously process and adjudicate

diversity visas prior to September 30, 2021, and to reserve diversity visas after September 30,

2021, for processing and adjudication at those embassies and posts impacted by the regional No-

Visa Policy. 31 As a court of equity, the court cannot place Plaintiffs in a better position than they would

have been in but for the State Department’s legal mistakes; it can endeavor only to place

Plaintiffs in the position they would have been in but for the errors. “Coming up with a

reasonable estimate is hardly an exact science.” Gomez II, 490 F. Supp. 3d at 289. A reasonable

estimate is the number of 2021 diversity visas the State Department likely would have issued but

for the regional No-Visa Policy.

Proclamations 9984 and 10143 pertain to thirty-one countries (twenty-six countries in the

Schengen Area, as well as Brazil, China, Ireland, South Africa, and the United Kingdom). See

Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020); Proclamation No. 10143, 86 Fed.

Reg. 7467 (Jan. 28, 2021). However, only twenty-seven of those thirty-one countries have an

embassy or consular post that processes diversity visas.8 See U.S. Dep’t of State, Monthly

Immigrant Visa Issuance Statistics, Fiscal Year 2021.

During the first half of the fiscal year, while the regional No-Visa policy was in effect,

those twenty-seven embassies and posts collectively issued just six diversity visas. See U.S.

Dep’t of State, Monthly Immigrant Visa Issuance Statistics, Fiscal Year 2021. From April

through July 2021, after the Secretary announced the April 8, 2021 exception, those twenty-

seven embassies and posts collectively issued 645 diversity visas, averaging roughly 161 per

month. See id. Thus, during the first six months of the fiscal year, those twenty-seven embassies

8 The twenty-seven embassies and posts subject to the regional No-Visa Policy were those in Vienna, Brussels, Prague, Tallinn, Helsinki, Paris, Frankfurt, Athens, Budapest, Reykjavik, Naples, Riga, Bern, Vilnius, Amsterdam, Warsaw, Lisbon, Bratislava, Ljubljana, Madrid, Stockholm, Johannesburg, Hong Kong, Dublin, Guangzhou, London, and Rio De Janeiro.

32 and posts could have issued approximately 966 diversity visas (161 x 6) but for the regional No-

Visa Policy.

Therefore, the court will order Defendants to undertake good faith efforts to

expeditiously process and adjudicate 2021 diversity visa applications and derivative beneficiary

applications by September 30, 2021, and to reserve 966 diversity visa numbers of applicants

awaiting adjudication at the twenty-seven embassies and posts previously subject to

Proclamations 9984 and 10143 and Defendants’ regional No-Visa Policy.

IV. CONCLUSION

For the reasons stated above, the court will GRANT in part and DENY in part

Defendants’ motion to dismiss and will GRANT in part and DENY in part Plaintiffs’ motion for

preliminary injunction.

The court will GRANT Defendants’ motion to dismiss Plaintiffs’ claims regarding

notice-and-comment rulemaking, the “mission critical” and “emergency” guidance, the national

interest exception, and separation of powers and nondelegation doctrine. The court will also

GRANT Defendants’ motion to dismiss President Biden as a named Defendant and the twenty-

two Plaintiffs whose diversity visa applications have already been adjudicated. The court will

DENY the remainder of Defendants’ motion to dismiss.

The court will GRANT Plaintiffs’ motion for preliminary injunction on their claims that

the regional No-Visa Policy violates the APA because it is contrary to law, in excess of statutory

authority, arbitrary, and capricious, and that Defendants unreasonably delayed and unlawfully

withheld processing and adjudication of Plaintiffs’ applications. The court will DENY

Plaintiffs’ motion for preliminary injunction as to the remainder of Plaintiffs’ claims.

33 Date: September 27, 2021

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge