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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DOMINGO ARREGUIN GOMEZ, et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-01419 (APM)
)
DONALD J. TRUMP, et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
MOHAMMED ABDULAZIZ )
ABDUL MOHAMMED, et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-01856 (APM)
)
MICHAEL R. POMPEO, et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
AFSIN AKER, et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-01926 (APM)
)
DONALD J. TRUMP, et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
CLAUDINE NGUM FONJONG, et al., )
)
Plaintiffs, )
)
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v. ) Case No. 20-cv-02128 (APM)
)
DONALD J. TRUMP, et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
CHANDAN PANDA, et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-1907 (APM)
)
CHAD F. WOLF, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
These five consolidated cases concern recent actions taken by the President and the State
Department to restrict the issuance of visas and entry of certain classes of foreign nationals into
the United States due to the COVID-19 pandemic. On March 20, 2020, the State Department
temporarily suspended routine visa services at consular offices and embassies worldwide due to
the pandemic, allowing only “emergency and mission critical visa services.” Then, on April 20,
2020, the President issued Presential Proclamation 10014, which suspended the entry of all
immigrants into the United States for two months unless they qualified for an exception to the
Proclamation. That Proclamation was followed two months later by Presidential Proclamation
10052, which extended the entry suspension for immigrants until December 31, 2020, and also
suspended the entry of foreign nationals seeking admission on temporary nonimmigrant visas, with
limited exceptions.
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The State Department has interpreted Proclamations 10014 and 10052 to suspend not just
entry, but also the review and adjudication of visas for applicants who are covered by the
Proclamations and not subject to any of their exceptions. Consequently, at posts that have not
resumed routine operations, visa processing and issuance have been suspended unless the applicant
is both (1) eligible for an exception to the Proclamation and (2) considered “mission critical.”
Though these are distinct requirements, the exceptions to the Proclamations appear to heavily
inform the types of applications considered to be mission critical. The State Department has begun
a phased reopening since July 15, 2020, but even at posts that have resumed routine operations,
the processing and issuance of covered, non-exempt visas remains suspended pursuant to the
Department’s interpretation of the Proclamations.
Plaintiffs in these five consolidated actions are approximately 1,076 visa applicants, visa
sponsors, and their derivative beneficiaries who represent various immigrant and nonimmigrant
visa categories that are subject to the Proclamations’ suspension of entry. Plaintiffs have all filed
motions for preliminary injunctions and temporary restraining orders, seeking to preliminarily
enjoin Defendants from implementing or enforcing the Proclamations, and two of the actions seek
to certify six putative subclasses. Plaintiffs all challenge the validity of the Proclamations on
various statutory and constitutional grounds, and they assert that the State Department’s
suspension of the processing and issuance of non-exempt visas pursuant to the Proclamations
violates the Administrative Procedure Act.
In addition, a subset of Plaintiffs (“DV-2020 Plaintiffs”) raise several challenges that are
specific to one category of immigrant visas—diversity visas. The DV-2020 Plaintiffs’ opportunity
to receive diversity visas and immigrate to the United States will permanently expire on September
30, 2020, unless Defendants process and issue their visas by then. Diversity visa applications are
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not currently being adjudicated, however, because they are, in general, ineligible for an exception
to the Proclamation and not considered mission critical. These Plaintiffs assert that the processing
and adjudication of their visas has been unreasonably delayed, and that the State Department’s
exclusion of this category from its guidance regarding mission critical services is arbitrary.
For the reasons discussed below, the court grants in part and denies in part Plaintiffs’
motions for preliminary relief. Specifically, the court rejects Plaintiffs’ statutory and constitutional
challenges to the Proclamations, but holds that Plaintiffs are substantially likely to succeed on their
claims that (1) the State Department’s policy of not reviewing and adjudicating non-exempt visas
is not in accordance with law, is in excess of statutory authority, and is arbitrary and capricious;
(2) the State Department’s non-processing of 2020 diversity visa applications constitutes agency
action unreasonably delayed; and (3) the State Department’s exclusion of 2020 diversity visa
applications from its guidance on mission critical services is arbitrary and capricious. The court
further concludes that the DV-2020 Plaintiffs have met the additional requirements for preliminary
injunctive relief pursuant to the court’s equitable authority and 5 U.S.C. § 705, but the Non-DV
Plaintiffs in Gomez have not. In light of the foregoing, the court denies without prejudice the
pending class certification motions as they pertain to the putative diversity visa classes, and defers
ruling on the Gomez Plaintiffs’ motion for class certification as it pertains to the other four putative
subclasses of Non-DV Plaintiffs.
I. BACKGROUND
A. Relevant Visa Categories
Broadly speaking, a foreign national wishing to enter the United States must first obtain a
visa from the State Department. A visa is a travel document that allows its holder to travel to a
port of entry and request permission to enter the United States, but it does not guarantee the right
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to enter the country. See Almaqrami v. Pompeo, 933 F.3d 774, 776 (D.C. Cir. 2019); Trump v.
Hawaii, 138 S. Ct. 2392, 2414 (2018) (explaining the “basic distinction” between visa issuance
and entry “that runs throughout the INA”); 8 U.S.C. § 1201(h). There are two overarching
categories of visas: immigrant and nonimmigrant. Nonimmigrant visas are issued to foreign
nationals seeking to enter the United States on a temporary basis for tourism, business, medical
treatment, and certain types of temporary work. Immigrant visas are issued to foreign nationals
intending to relocate permanently to the United States. See United States v. Idowu, 105 F.3d 728,
731 (D.C. Cir. 1997); Requirements for Immigrant and Nonimmigrant Visas, U.S. CUSTOMS &
BORDER PROTECTION (Jan. 3, 2018).1
Six visa categories are relevant for this case.
Family-Based Immigrant Visas. Under the family-based immigrant visa program, a
U.S. citizen or lawful permanent resident may “sponsor” a foreign-national relative (the
“beneficiary”) for an immigrant visa. See 8 U.S.C. §§ 1151, 1153(a). The sponsor may also
petition for visas for certain relatives (“derivatives”) of the principal beneficiary. Id. §§ 1153(d),
1154(a). A family member seeking to sponsor a beneficiary must file a petition with the United
States Citizenship and Immigration Services (“USCIS”). Once the petition is approved, USCIS
will forward the visa petition for consular processing. Most approved visa applicants must then
wait in a queue, determined by the applicant’s country of origin and his or her relationship with
the visa sponsor. See id. § 1153(e); 22 C.F.R. §§ 42.51(a), 42.52(a)–(c); 9 FAM 504.1-2(c)–(d).
When the applicant reaches the front of the queue, he or she completes the visa application,
provides supporting evidence, pays the requisite fees, and attends an in-person interview with a
1 Available at https://www.cbp.gov/travel/international-visitors/visa-waiver-program/requirements-immigrant-and- nonimmigrant-visas.
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employment of an H-2B worker will not adversely affect the wage rates or working conditions of
similarly employed domestic workers. See 8 C.F.R. §§ 214.2(h)(6)(iii)(A)–(D), (6)(iv)(A); id.
§ 655.0 et seq. If the certification is approved, the employer may file a petition with USCIS. Id.
§ 214.2(h)(6)(iii)(E).
J Nonimmigrant Visas. The J visa category allows approved individuals to participate in
work- and study-based exchange visitor programs. See 8 U.S.C. § 1101(a)(15)(J); 22 U.S.C.
§§ 2451, et seq. Regulations establish 15 categories of exchange program eligibility, including
trainees, teachers, au pairs, and summer work and travel for foreign students. 22 C.F.R. §§ 62.1,
62.4. J visa applicants must be sponsored by designated entities, which include government
agencies, academic institutions, businesses, and non-profits. Id. §§ 62.3, 62.5–13, 62.15.
L Nonimmigrant Visas. The L visa program allows multinational corporations to sponsor
visas for temporary intracompany transfers to the United States of foreign managers and executives
(L-1A visas) or employees with certain “specialized knowledge” about the petitioning company
(L-1B visas). See 8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. §§ 214.2(l)(1)(ii)(B)–(D).
B. The State Department’s COVID-19 Guidance
On March 20, 2020, the State Department “temporarily suspend[ed] routine visa services
at all U.S. Embassies and Consulates” due to COVID-19, but continued to require posts to provide
“emergency and mission critical visa services” as resources allowed. See Certified Admin. R.
(“CAR”), ECF No. 103-1 [hereinafter CAR], at 12–14 [hereinafter “COVID-19 Guidance”]. The
State Department included as “mission critical or emergency services”:
[t]he processing of certain non-immigrant visas such as diplomatic
and official visas, H-2 visas associated with food supply, certain
medical professionals, air and sea crew and medical emergencies, .
. . [and] cases in which an applicant is not protected by the Child
Status Protection Act and is at risk of losing eligibility for a visa in
his or her current category . . . , spouses and unmarried children of
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U.S. citizens, as well as visas for adopted children, Afghan and Iraqi
Special Immigrant visas, certain medical professionals, and medical
emergencies.
Defs.’ Opp’n to Pls.’ Mots. for Prelim. Inj., ECF No. 94 [hereinafter Defs.’ Opp’n], Decl. of
Brianne Marwaha, ECF No. 94-1 [hereinafter Marwaha Decl.], ¶ 8.
Between March 20 and July 15, 2020, “[p]osts [did] not have the authority to resume
normal visa operations even if the host country ha[d] lifted most restrictions.” CAR at 23, 35.
Since July 15, however, the State Department has permitted posts to “begin a phased approach to
the resumption of routine visa services.” CAR 35. The phased reopening, termed “Diplomacy
Strong,” is “based on local health and safety conditions,” and includes four operational tiers. CAR
36. In Phases Zero and One, posts “may continue processing only emergency and mission-critical
. . . cases, as resources and local conditions allow.” CAR 36, 38. Phase Two allows for a partial
resumption of routine services, and Phase Three allows for full resumption. CAR 37–39. Each
phase includes detailed guidance regarding the types of visa categories posts should prioritize for
processing. CAR 36–39.
C. Proclamation 10014
On April 22, 2020, the President signed Presidential Proclamation 10014, which
temporarily suspends the entry of immigrants into the United States pursuant to 8 U.S.C. § 1182(f)
and 8 U.S.C. § 1185(a). 85 Fed. Reg. 23,441 (Apr. 22, 2020). The Proclamation supplies three
justifications for the action. First among those is to address the damage to the economy caused by
the COVID-19 pandemic. See id. at 23,441–42. The Proclamation states that “we must be mindful
of the impact of foreign workers on the United States labor market, particularly in an environment
of high domestic unemployment and depressed demand for labor,” and highlights the need to
protect in particular “workers at the margin between employment and unemployment, who are
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typically ‘last in’ during an economic expansion and ‘first out’ during an economic contraction.”
Id. at 23,441. Second, the Proclamation notes that “introducing additional permanent residents
when our healthcare resources are limited puts strain on the finite limits of our healthcare system
at a time when we need to prioritize Americans and the existing immigrant population.” Id. at
23,442. And third, the Proclamation explains that a pause on entry is required “so that consular
officers may continue to provide services to United States citizens abroad.” Id. at 23,441.
Accordingly, Proclamation 10014 suspended for two months the “entry into the United
States” of most immigrants abroad who did not already have a valid immigrant visa or travel
document as of April 23, 2020. 85 Fed. Reg. at 23,442–43 §§ 1, 2(a), 5. The Proclamation is
subject to certain exceptions, including that “any alien whose entry would be in the national
interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their
respective designees,” is eligible to seek entry. 85 Fed. Reg. at 23,443 § 2(b)(ix). The Secretaries
of State and Homeland Security are tasked with implementing the Proclamation as it applies to
visas and entry, respectively, though consular officers are directed to determine, “in their
discretion, whether an immigrant has established his or her eligibility for an exception” to the
Proclamation. Id. at 23,443 § 3.
D. Proclamation 10052 and the National Interest Exception
On June 22, 2020, the President issued Proclamation 10052, which extended Proclamation
10014 and also suspended the entry of various nonimmigrants through December 31, 2020.
85 Fed. Reg. 38,263, 38,263–67 (June 25, 2020). The President announced that the Secretaries of
Labor and Homeland Security had reviewed nonimmigrant programs and “found that the present
admission of workers within several nonimmigrant visa categories also poses a risk of displacing
and disadvantaging United States workers during the current recovery.” Id. at 38,263.
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10052], until given a specific instruction to do so.” CAR 38; see also CAR 36. This policy of
suspending all processing and issuance of visas in categories covered by the Proclamation and not
subject to an exception is referred to as the “No-Visa Policy.”2
F. The Application of Defendants’ COVID-19 Guidance and No-Visa Policy to
Diversity Visa Applicants
The State Department has issued only approximately 12,000 Fiscal Year 2020 diversity
visas, meaning that approximately 43,000 visas are still available to DV-2020 selectees. See
8/27/2020 Arg. Tr. at 68. Those selectees must receive visas by the end of the fiscal year,
September 30, 2020, or their opportunity to immigrate to the United States will vanish. 8 U.S.C.
§ 1154(a)(1)(I)(ii)(II). Despite this fast-approaching deadline, “[p]ursuant to guidance from the
[State] Department on the suspension of routine visa services and implementation of P.P. 10014
and P.P. 10052,” no “additional diversity visa case appointments with [consular] posts” have been
scheduled since March 20, 2020. Defs.’ Opp’n, Decl. of Aaron Luster, ECF No. 94-3 [hereinafter
Luster Decl.], ¶ 5. “[O]nly when a consular post reaches Phase Three of the Diplomacy Strong
Framework may the post resume diversity visa case processing, and only for cases that appear to
be eligible for an exception to P.P. 10014.” Id.
Thus, DV-2020 selectees are doubly doomed. Pursuant to the COVID-19 Guidance,
diversity visa selects who are imminently going to lose their eligibility to receive a visa are not
being treated as mission critical at those posts that have not resumed routine visa processing. See
8/7/2020 Status Hr’g Tr., ECF No. 78 [hereinafter 8/7/2020 Status Hr’g Tr.], at 19. And pursuant
2 Communications from consular offices, embassies, and the Kentucky Consular Center to visa applicants and DV- 2020 selectees reflect the execution of the State Department’s No-Visa Policy. See, e.g., Second Am. Compl., Gomez
v. Trump, 20-cv-1419, (APM), ECF No. 46, Ex. H, ECF No. 46-8 (“While the proclamation is in place, the issuance
of diversity visas is not permitted.”); id., Ex. O, ECF No. 46-15 (“We will not be issuing H-1B, H-2B, L, or certain J
visas . . . through December 31, 2020, unless an exception applies.”); Gomez PI Mot., ECF No. 53-11 ¶ 21 (“We
contacted the Kentucky Consular Center, which reported that no interviews would be scheduled due to the travel
ban.”); id., ECF No. 53-24 ¶ 14 (“Please be informed that L visas issuance is suspended due to Presidential
Proclamation 10052 until, at least, December 31st, 2020.”).
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Pls.’ Mot. for TRO & Prelim. Inj. & Mem. of P. & A. in Supp., Aker v. Trump, No. 20-cv-1926
(APM), ECF No. 4 [hereinafter Aker TRO/PI Mem.], at 15–16. In their motion for temporary
restraining order and preliminary injunction, the Aker Plaintiffs assert that the Proclamations are
ultra vires, the State Department’s implementation of the Proclamations violates the APA, and the
Proclamations and their implementations violate the Take Care Clause, the Due Process Clause,
and the Equal Protection clause of the Constitution. Id. at 38–55. They ask the court to:
(1) postpone the end-date of visa issuance for DV-2020 selectees to September 30, 2021; (2) enjoin
the State Department from suspending the issuance and reissuance of visas for the diversity visa
program; (3) enjoin the State Department from suspending visa adjudication for DV-2020
selectees; (4) order the State Department and the Kentucky Consular Center to complete
processing visas for DV-2020 selectees; (5) order the State Department to issue visas for
individuals who completed the interview process prior to the Proclamations; and (6) order the State
Department to reissue expired visas for Fiscal Year 2020 diversity visa selectees whose visas
expired before they could complete travel to the United States. Id. at 1–2.
In addition, the Aker Plaintiffs seek to certify the following class:
All individual diversity visa immigrant applicants and their
derivative beneficiaries whose diversity visas were issued prior to
Presidential Proclamations 10052 and/or 10014 taking effect, but
who were unable to enter the United States due to travel restrictions
and who have subsequently been unable to obtain reissuance of their
visas through the individual consulates of the Department of State
pursuant to the Presidential Proclamations.
See Mot. for Class Cert. & Supporting Mem., Gomez v. Trump, No. 20-cv-1419 (APM), ECF No.
84 [hereinafter Aker Class Cert. Mot.], at 2.
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December 31, 2020.” Id. ¶ 13. Nakamura states that unless she could “show that [she] was eligible
for a national interest exception, the president’s proclamation would end [her] one chance at
immigrating to the United States.” Id. On July 13, 2020, Nakamura’s attorney, Michael Dunn,
contacted the U.S. Consulate in Tokyo to request an emergency interview before the end of the
fiscal year, but the Consulate responded that “[a]ll diversity (DV) immigrant visa appointments
have been cancelled at this time.” Id. ¶ 15. Nakamura states that after Dunn reached out to the
Kentucky Consular Center, he was told that “[d]ue to the novel COVID-19 outbreak[,] all
interviews for the DV program have been suspended, [and] it is undetermined when scheduling
will resume.” Id. ¶ 16.
On July 16, 2020, Dunn contacted the Consulate on Nakamura’s behalf once more to
request an emergency interview “in order to specifically seek an exception to the proclamation.”
Id. ¶ 17. As of July 31, 2020, Nakamura states that Dunn has not received a response. Id. On
July 28, 2020, Dunn contacted the Consulate a third time to request an emergency interview “in
order to specifically seek a national interest exception to the proclamation.” Id. ¶ 18. Again,
Nakamura states that Dunn has not received a response. Id. She further states that if she had not
pursued a diversity visa, she “would still be in the United States preparing to enter a university to
complete a four-year degree in accounting.” Id. ¶ 21. She worries that if she does “not get a visa
on or before September 30, [she] will have wasted so much time and money [she] spent on [her]
U.S. education,” and she “will never be able to reach [her] dream of becoming a CPA . . . in the
United States.” Id. ¶ 21.
Injury. Defendants do not contest that Nakamura (or any of the other Gomez Plaintiffs, for
that matter) fails to establish a cognizable injury in fact. And for good reason: she easily
establishes the requisites for an imminent injury in fact. Nakamura, like all Plaintiffs in these
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requirements for a diversity visa” and is “not aware of any reason why a consular officer might
decide that [she is] inadmissible and refuse to issue [her] a visa.” Nakamura Decl. ¶ 11.
Defendants offer no evidence to the contrary. Nakamura therefore has established a substantial
likelihood of redressability at the preliminary injunction stage.
***
In summary, because one Gomez DV-2020 Plaintiff has established a substantial likelihood
of standing, the court has subject matter jurisdiction over all claims asserted by the Gomez
Plaintiffs.
b. Mohammed, Fonjong, and Aker Plaintiffs
The court likewise holds that there is at least one plaintiff in each of the Mohammed,
Fonjong, and Aker cases who has demonstrated a substantial likelihood of standing.
The Mohammed Plaintiffs submit the declaration of Shereen Elsaid Rezk Abdelaziz
Nawara, a citizen of Egypt who currently resides in the United Arab Emirates. Pls.’ Mot. for
Prelim. Inj. Relief, Mohammed v. Pompeo, ECF No. 20-cv-1856 (APM), ECF No. 8 [hereinafter
Mohammed Pls.’ Mot.], Ex. 19, Decl. of Shereen Elsaid Rezk Abdelaziz Nawara, ECF No. 8-20
at 1. After Nawara was selected for the DV-2020 lottery, she traveled to Egypt to obtain the needed
documents. See id. ¶ 15. She sent them all to the Kentucky Consular Center and was informed
that she had submitted the required documents and was ready to be scheduled for an interview
when her case number became current. Id. Believing that her children would be attending school
in the United States, Nawara did not enroll them in school in the UAE. Id. ¶ 14. But her interview
was scheduled for May 2020, just a few weeks after Proclamation 10014 was issued, and it was
cancelled. Id. ¶¶ 11, 16. She states that “this Proclamation [has] made it so that we cannot get the
immigrant visas which we should be granted,” and that this has been “terrible” news. Id. ¶ 6.
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on the President the duties to “supply a rational justification” and to conduct “some rational
investigation,” neither of which are reflected in the Proclamations. Id. Second, Plaintiffs dispute
the logic underlying the “finding.” They contend that, contrary to the justifications put forward in
the Proclamation, immigrants like diversity lottery winners do not compete against American
workers for scarce jobs; they also insist that nonimmigrants like H-1B and H-2B visa applicants
work in sectors where “unemployment is low, rather than in the high-unemployment areas that the
entry suspension is supposedly meant to target.” Id. at 25. Finally, they maintain that the exclusion
of immigrant and nonimmigrant labor actually is counterproductive to the President’s stated goal
of improving the economic prospects of American workers. See id. at 26. They cite declarations
from experts, economic studies, and even statements from federal agencies to make the point that
the entry of aliens in fact creates jobs for American workers, and the idea that new arrivals take
jobs from Americans is a fallacy. See id. at 26–29. None of these arguments is ultimately
persuasive.12
a. Plaintiffs’ demand for a “rational justification” and a “rational
investigation” far exceeds what the Court in Trump v. Hawaii required for a valid presidential
“finding.” As noted, the Court found it “questionable” that § 1182(f) required the President to
“explain [the] finding with sufficient detail to enable judicial review.” 138 S. Ct. at 2409. “[A]
12 The Gomez Plaintiffs advance claims titled “Ultra Vires—Violation of the INA” as their Third and Fifth Causes of
Action. See Gomez SAC ¶¶ 328–31, 337–40. Each of those causes of action asserts that the Proclamations are
unlawful because they suspend not only entry to the United States, but also the issuance of various categories of
immigrant and nonimmigrant visas. See id. ¶¶ 328–30; see also Hawaii, 138 S. Ct. at 2414 (observing that the “basic
distinction between admissibility determinations and visa issuance [ ] runs throughout the INA”). The Gomez
Plaintiffs did not, however, advance either of these claims in their motion for injunctive relief, which repeatedly
stresses that “the Proclamations address only entry into the United States. They do not say anything about suspending
the issuance of visas.” Gomez PI Mem. at 2. Rather, Plaintiffs asserted only the legal theory contained in their Fourth
Cause of Action, which challenges the sufficiency and accuracy of the findings the President made to justify the
suspension of entry. Compare id. ¶¶ 332–35, with Gomez PI Mem. at 22–29. Defendants must have read the Gomez
Plaintiffs’ motion the same way, as they do not address whether the Proclamations are directed to conditions of entry
only, or also establish new conditions of visa eligibility. See Defs.’ Opp’n at 31–42. Accordingly, consistent with the
parties’ briefing, the court does not opine on the question whether the Proclamations exceed the President’s authority
under § 1182(f) by impermissibly adding conditions of visa eligibility.
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v. Bikundi, 926 F.3d 761, 776–77 (D.C. Cir. 2019), and United States v. Sanders, 485 F.3d 654,
659 (D.C. Cir. 2007), which articulate the standard for granting an ends-of-justice continuance
under the Speedy Trial Act. See Gomez PI Mem. at 23. Suffice it to say none of these cases supply
a more controlling or persuasive interpretation of the “finding” requirement under § 1182(f) than
Trump v. Hawaii.
b. Plaintiffs’ attack on the sufficiency of the President’s findings also fails.
In Proclamation 10014, the President identified the massive displacement of American workers
due to the COVID-19 pandemic as the reason for executive action: “[W]e must be mindful of the
impact of foreign workers on the United States labor market, particularly in an environment of
high domestic unemployment and depressed demand for labor.” 85 Fed. Reg. at 23,441. The
President continued that excess labor supply affects all workers and potential workers, particularly
those who are “last in” during an economic expansion and “last out” during an economic
contraction, including most significantly “historically disadvantaged groups,” such as African- Americans and other minorities, those without college degrees, and the disabled. Id. An influx of
new lawful permanent residents would exacerbate the strain on the labor market. The President
noted that new lawful permanent residents are granted “open-market” employment authorization
allowing them to compete in almost any sector of the economy, and that “[e]xisting immigrant
visa processing protections are inadequate for recovery from the COVID-19 outbreak.” Id. Most
immigrant visa categories, the President stated, “do not require employers to account for
displacement of Untied States workers” and, though some employment-based visas require a labor
certification, “because visa issuance happens substantially after the certification is completed, the
labor certification process cannot adequately capture the status of the labor market today.” Id. at
23,441–42. Proclamation 10052, issued nearly 60 days later, amplified the President’s rationale
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word “suspend” connotes a “deferral until later.” See 138 S. Ct. at 2409–10 (cleaned up). To
satisfy that limitation, the Court stated, the President need not “prescribe in advance a fixed end
date for the entry restriction,” but may “link the duration of those restrictions, implicitly or
explicitly, to the resolution of the triggering condition.” Id. The Aker Plaintiffs assert not that the
Proclamations fail to include a “triggering condition”; rather, citing the President’s own tweets
and words, they argue that the “triggering condition”—recovery of the economy—has been
satisfied, thereby “the basis of the Proclamation has been overcome.” Aker TRO/PI Mem. at 39–
42. This argument has no merit. Section 1182(f) “exudes deference” to the President as to “how
long” and on “what conditions” restrictions on entry shall remain. Hawaii, 138 S. Ct. at 2408.
The economic conditions triggering the Proclamations have not by any stretch returned to normal,
and Plaintiffs cannot seriously contend otherwise. Thus, to the extent the judicial branch has any
role in assessing whether such a “triggering condition” has been resolved, it plainly has not in this
case.
2. Separation of Powers
The Gomez Plaintiffs contend that, even if the President made the requisite statutory
findings, the Proclamations are “independently invalid because [they] . . . violate[] foundational
separation-of-powers principles.” Gomez PI Mem. at 29. They maintain that Congress already
has “carefully prescribed” the requirements for foreign nationals who seek to enter the United
States as skilled and unskilled workers, and the Proclamations nullify those requirements. See id.
at 30–31. For immigrant visa categories, like diversity visas, Congress elected not to place
restrictions on their labor market participation. See id. at 31. The Proclamations, they say,
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§ 1182(f) “vests authority in the President to impose additional limitations on entry beyond the
grounds for exclusion set forth in the INA”). Placing sweeping limitations on entry is within the
broad presidential powers conferred under § 1182(f).
Plaintiffs rely primarily on the district court’s decision in Doe #1, which enjoined a
presidential proclamation in part on separation-of-powers grounds. See Doe #1 v. Trump, 418
F. Supp. 3d 573, 593–98 (D. Or. 2019). There, the court held that a presidential proclamation
requiring aliens to demonstrate proof of health insurance as a condition of entry was unlawful
because it conflicted with the INA’s “public charge” provision, which excludes aliens from
admission who would create a financial burden on the United States. See id. at 594 (citing 8 U.S.C.
§ 1182(a)(4)). The key deficiencies that the court in Doe #1 identified are not present here. First,
the reason for the entry suspension in that case was the widespread problem of “uncompensated
costs” in the national healthcare system. See id. at 596. This “triggering condition,” the court
found, was apt to lead to an unauthorized “indefinite” suspension, because “[t]here is no reasonable
interpretation of the Proclamation showing that this intractable problem is going to end any time
soon” and the Proclamation provides no guidance “for determining under what circumstances the
necessity for the Proclamation would be over.” Id. The same concerns are not present here.
Though the job displacement in the U.S. labor market caused by the COVID-19 pandemic has
been immense and swift, even Plaintiffs do not suggest that its lasting effects will be indefinite.
Second, the court in Doe #1 found that the entry restriction in that case reinstated a “bar that
Congress expressly eliminated from the INA—the bar to ‘paupers.’” Id. Plaintiffs here have
identified no similar conflict. In the end, the constitutional concerns that led to the court’s decision
in Doe #1 are not present in this case. The Proclamations here do not run afoul of separation of
powers.
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United States” and as “he may deem to be appropriate” convey an expansive grant of power, but
they are no more capacious than the broad standards deemed sufficiently intelligible by the
Supreme Court in all but two of its cases. See Gundy, 139 S. Ct. at 2129. Section 1182(f) thus
“does not suffer from a mortal constitutional defect hiding in plain sight.” Doe #1, 957 F.3d at
1079 (Bress, J., dissenting).
The Gomez Plaintiffs suggest that a nondelegation problem arises here because the
President acted in the sphere of domestic policymaking, as opposed to international affairs or
national security. That argument misses the mark. As already discussed, that less deference is
warranted here because the Proclamations targeted “domestic” matters, as distinct from foreign
affairs or national security matters, is a dubious proposition. See pp. 40–41, supra. But the
distinction also misapprehends the nondelegation inquiry. Whether Congress exceeded its broad
authority to delegate depends not on the setting in which that authority is exercised, but on the text
of the statute. Otherwise, “[t]he very choice of which portion of the power to exercise”—domestic
or foreign power—“would itself be an exercise of the forbidden legislative authority.” Whitman,
531 U.S. at 473. “[A] nondelegation inquiry always begins (and often almost ends) with statutory
interpretation.” Gundy, 139 S. Ct. at 2123. “The constitutional question is whether Congress has
supplied an intelligible principle to guide the delegee’s use of discretion.” Id. The context in
which the delegee exercises that discretion is not the proper lens through which to make the
nondelegation inquiry.14 The Gomez Plaintiffs thus have failed to establish a likelihood of success
on their nondelegation claim.
14 The court recognizes that the district court in Doe #1 v. Trump held that when the President uses his authority under
§ 1182(f) “to engage in domestic policymaking, without addressing any foreign relations or national security issue or
emergency . . . . the delegation by Congress is without any intelligible principle and thus fails under the nondelegation
doctrine.” 418 F. Supp. 3d at 592. For the reasons discussed, this court respectfully disagrees with that conclusion.
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4. Remaining Constitutional Claims
The Aker Plaintiffs, joined by the Gomez DV-2020 Plaintiffs, advance three other
constitutional arguments to nullify the Proclamations and their implementation specific to diversity
visa applicants. See Aker TRO/PI Mem. at 53–56; Gomez Suppl. PI Mem. at 8. The court easily
disposes of these claims.
First, Plaintiffs assert that the President has violated the Constitution’s Take Care Clause,
see U.S. Const. Art. II § 3, Cl. 5, because “the INA holds diversity visa eligibility and the ability
to apply for these visas as mandatory” and “the State Department’s unlawful and ultra vires
suspension of and untimely adjudication of cases and issuance or reissuance of visas is ‘unfaithful’
to the INA.” Aker TRO/PI Mem. at 53–54. As framed, Plaintiffs’ Take Care Clause claim is
duplicative of that aspect of their APA arbitrary-and-capricious claim asserting that the State
Department has unlawfully withheld nondiscretionary review and adjudication of diversity visa
applications and renewals. Because, as discussed below, the court finds in favor of Plaintiffs on
their APA claim, the court need not reach their claim under the Take Care Clause. See Qassim v.
Trump, 927 F.3d 522, 530 (D.C. Cir. 2019) (stating that “courts must ‘avoid the premature
adjudication of constitutional questions’ and ‘not . . . pass on questions of constitutionality . . .
unless such adjudication is unavoidable’” (quoting Matal v. Tam,137 S. Ct. 1744, 1755 (2017)).
Second, Plaintiffs contend that the President’s and the State Department’s suspension of
diversity visa application processing violates the Due Process Clause. Aker TRO/PI Mem. at 54–
55. Plaintiffs do not, however, invoke a constitutional framework to support this claim. Instead,
they argue that “[b]y failing to comply with the APA,” “the procedural due process rights of the
Plaintiffs have been violated,” citing in particular the State Department’s failure to provide “any
notice or meaningful opportunity to comment on its application of the Presidential Proclamations.”
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Opp’n at 29, and that the State Department’s refusal to process non-exempt covered visas is lawful
because 8 U.S.C. § 1201(g) prohibits consular officers from issuing visas to persons declared
ineligible for entry under § 1182(f), see id. at 42–44. Neither defense is persuasive.
First, Defendants incorrectly assert that Plaintiffs have not alleged final agency action
because the “legal consequences that Plaintiffs challenge flow from the Proclamations, not action
by the State Department.” Id. at 31. The Proclamations solely address the entry of immigrants
and certain nonimmigrants into the country; they say nothing about the issuance and adjudication
of visas. And the statutory authorities cited in the Proclamations also address only entry, not visa
issuance. See 8 U.S.C. § 1182(f) (empowering the President to “suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate”); 8 U.S.C. § 1185(a) (“[I]t shall be unlawful . . . for
any alien to depart from or enter . . . the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations and exceptions as the President may
prescribe.”). The Proclamations themselves do not dictate Defendants’ No-Visa Policy.
Defendants’ primary argument is that the No-Visa Policy is an automatic consequence of
another statutory provision of the INA—8 U.S.C. § 1201(g)—and therefore does not violate the
APA. See Defs.’ Opp’n at 42–44; see also CAR 156 (“All [covered, non-exempt] cases must be
refused under INA [§ 1201(g)] until further guidance is received from the Department.”).
Subsection 1201(g) provides that “[n]o visa . . . shall be issued to an alien if . . . it appears to the
consular officer . . . that such alien is ineligible to receive a visa or other such documentation under
section 1182.” A person declared inadmissible to enter the United States under § 1182(f), the
theory goes, is therefore ineligible to receive a visa under § 1201(g). Defs.’ Opp’n at 42–44. But
that argument ignores “the basic distinction between admissibility determinations,” i.e., entry
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determinations,18 and “visa issuance that runs throughout the INA.” Hawaii, 138 S. Ct. at 2414 &
n.3 (collecting statutory examples). Subsection 1201(g) precludes the issuance of visas only as to
persons who are “ineligible to receive a visa” under Section 1182, not to persons who are only
ineligible to enter under that provision. 8 U.S.C. § 1201(g) (emphasis added).
The categories of persons deemed ineligible to receive a visa pursuant to § 1201(g) appear
in § 1182(a), not § 1182(f).
19 See Castaneda-Gonzalez v. Immigr. & Naturalization Serv.,
564 F.2d 417, 426 (D.C. Cir. 1977) (explaining that § 1201(g) “directs [consular officers] not to
issue visas to any alien who falls within one of the excludable classes described in [8 U.S.C.
§ 1182(a)]”). Subsection 1182(a) provides that “aliens who are inadmissible under the following
paragraphs are ineligible to receive visas and ineligible to be admitted to the United States.” Thus,
a person who falls into one of the categories of inadmissible persons outlined in § 1182(a) is both
ineligible to enter the country and ineligible to receive a visa pursuant to § 1201(g). “For example,
an alien cannot receive a visa if she has ‘a communicable disease of public health significance,’
and if she contracts such a disease after receiving her visa, she will be denied entry.” Almaqrami,
933 F.3d at 776 (quoting 8 U.S.C. § 1182(a)(1)(A)). Subsection 1182(a) does not provide the
President or the State Department any authority to supplement the listed categories of dual
ineligibility and inadmissibility.
The reference to “the following paragraphs” in § 1182(a) does not “includ[e] § 1182(f),”
as Defendants suggest. Defs.’ Opp’n at 43. Section 1182 of the INA carefully distinguishes
between subsections, which include §§ 1182(a) and 1182(f), and paragraphs, which are subunits
18 “The concepts of entry and admission—but not issuance of a visa—are used interchangeably in the INA.” Hawaii,
138 S. Ct. at 2414 n.4; see 8 U.S.C. § 1101(a)(13)(A) (defining “admission” as the “lawful entry of the alien into the
United States”). 19 Other subsections of § 1182, including § 1182(e), provide additional limitations on eligibility for visas, but
Defendants do not contend that these subsections have any bearing on the question of whether a person suspended
from entering under § 1182(f) is ineligible for a visa under § 1201(g).
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of those subsections. See generally 8 U.S.C. § 1182. Thus, “the following paragraphs” in
§ 1182(a) include only the ten paragraphs of § 1182(a); they do not also include § 1182(f), a
distinct subsection of § 1182. A suspension of entry under § 1182(f) therefore has no bearing on
whether the person is “inadmissible” under § 1182(a) or ineligible to receive a visa under
§ 1201(g). See Almaqrami, 933 F.3d at 776 (explaining that “[f]ailure to satisfy” the requirements
of § 1182(a) “will render an alien ineligible for a visa and ineligible for entry,” while “[o]ther parts
of the INA apply to only visas or entry” (emphasis in original)).
Losing the textual battle, Defendants invoke the Supreme Court’s decision in Trump v.
Hawaii, which held that “any alien who is inadmissible under § 1182 (based on, for example,
health risks, criminal history, or foreign policy consequences) is screened out as ‘ineligible to
receive a visa.’” Hawaii, 138 S. Ct. at 2414 (quoting § 1201(g)); Defs.’ Opp’n at 43. But the Court
never held that the President’s suspension of entry under § 1182(f) renders a person ineligible to
receive a visa. To the contrary, all the examples Hawaii cites all come from § 1182(a), see 8
U.S.C. § 1182(a)(1) (health risks); id. § 1182(a)(2) (criminal history); id. § 1182(a)(3)(C) (foreign
policy). And the Court specifically cited § 1182(f) as a screen on entry into the United States. See
138 S. Ct. at 2414. Subsection 1182(a), unlike § 1182(f), does establish categories of applicants
that are ineligible to receive visas under § 1201(g). And, as discussed, the Court repeatedly
stressed the distinction between entry and visa issuance, see Hawaii, 138 S. Ct. at 2414, a
distinction which Defendants’ position elides.20
20 Defendants also argue that the “State Department’s practice, consistent with section 1201(g), has thus been to treat
aliens covered by Presidential orders under section 1182(f) as ineligible for visas,” Defs’ Opp’n at 43, but the provision
of the Foreign Affairs Manual they cite for that proposition, 9 FAM 302.14-3(B), does not mention visas at all—it
simply describes the President’s authority “to suspend entry into the United States.” The court notes that another
provision of the Manual, 9 FAM 301.4-1, does suggest that aliens excluded under § 1182(f) may be ineligible to
receive visas. That section has not been briefed, however, and so the court does not opine on its validity or persuasive
force.
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Nor is the court persuaded by Defendants’ argument that interpreting the INA to allow the
issuance of visas to persons who might be ineligible to enter the country under a § 1182(f)
proclamation “would only result in administrative confusion.” Defs.’ Opp’n at 44. The court
acknowledges that such a system could create the odd result of persons receiving visas only to be
turned away at ports of entry. However, “[a] visa does not guarantee entry into the United States;
it only confers the right to travel to a port of entry and apply for admission to enter the country.”
Almaqrami, 933 F.3d at 776. In any event, there may be sound reasons for Congress’s distinction.
For instance, most immigrant visas are valid for six months, and some are valid for three years.
8 U.S.C. § 1201(c)(1). Congress may not have wished to halt visa processing and issuance for
categories of persons who are only temporarily “suspend[ed]” from entering the country under
§ 1182(f), particularly where, as here, the visa applicant’s opportunity to receive a visa is time
delimited. For example, if a DV-2020 selectee receives her visa by the end of this month, it will
be valid for another three months after the Proclamations are set to expire, giving her three months
to enter the country.
Because neither the Proclamation nor § 1201(g) of the INA compel or empower the State
Department to suspend the processing and issuance of visas, Defendants’ argument that Plaintiffs
have alleged no final agency action collapses. The term “agency action” “cover[s]
comprehensively every manner in which an agency may exercise its power.” Whitman, 531 U.S.
at 478. To be “final,” that action need only “mark the consummation of the agency’s
decisionmaking process” and “be one by which rights or obligations have been determined, or
from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(cleaned up). Defendants, through a cluster of guidance documents, cables, and directives, have
ordered consular offices and embassies to cease processing and issuing visas for otherwise
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qualified applicants not exempt or excepted from the Proclamation, under the mistaken belief that
they are legally required to do so. See e.g., CAR 24 (instructing that “[o]nly [visa] applicants that
post believes may meet an exception to the [Proclamation], including the national interest
exception, and that constitute a mission-critical category should be adjudicated at this time,” and
clarifying that officers “may not issue any [visas] that are not also excepted under
[Proclamation]”); CAR 38 (“Presidential Proclamation 10052 suspended the issuance of
nonimmigrant visas in the H-1B, H-2B, L, and J-1 . . . classifications until December 31, 2020,
with certain exceptions . . . . Posts should NOT resume routine processing of these visa
classifications, unless the applicant qualifies for an exception under this or any subsequent
Proclamation, until given a specific instruction to do so.”); CAR 36 (providing similar instructions
for immigrant visas); Luster Decl. ¶ 5 (explaining that “[p]ursuant to guidance from the
Department on . . . the implementation of P.P. 10014 and P.P. 10052,” no “additional diversity
visa case appointments with [consular] posts” have been scheduled,” and “only when a consular
post reaches Phase Three of the Diplomacy Strong Framework may the post resume diversity visa
case processing, and only for cases that appear to be eligible for an exception to P.P. 10014”).
Both of the Bennett factors are met here. Defendants’ decisionmaking process is not in
flux; they believe the policy is statutorily required. As a consequence, it appears that thousands
of otherwise qualified visa applications are not being processed or issued. And even those
applicants who may be able to meet an exception to the Proclamations are, as the Mohammed
Plaintiffs note, subject to additional “eligibility requirements for decisions on diversity visa
applications that cannot be . . . found in the statutes, regulations, or executive orders governing
their adjudications.” See Mohammed PI Mem. at 21; see CAR 167–74 (detailing various extra- statutory requirements for applicants to qualify for the national interest exception). That is
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paradigmatic final agency action. See Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627, 637 (D.C.
Cir. 2019) (Finality is determined “based on the concrete consequences an agency action has or
does not have as a result of the specific statutes and regulations that govern it.”); Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (finding final agency action where “the
entire Guidance, from beginning to end . . . reads like a ukase. It commands, it requires, it orders,
it dictates”); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 438 (D.C. Cir. 1986) (“[A]n agency’s
interpretation of its governing statute, with the expectation that regulated parties will conform to
and rely on this interpretation, is final agency action fit for judicial review.” (cleaned up)).
Likewise, Defendants’ argument that their No-Visa Policy is consistent with the INA and
does not “usurp[] consular officers’ sole and express statutory authority to issue visas” rises and
falls on their incorrect assumption that “Plaintiffs are inadmissible” under § 1182(f) “and, in turn,
‘ineligible to receive a visa’ for the purposes of 8 U.S.C. § 1201(g)(1).” Defs.’ Opp’n at 43–44.
Apart from § 1201(g), which does not apply here, Defendants identify no statutory authority that
would authorize Defendants to order consular officers to cease processing and issuing qualifying
visas. Under the INA, “[a]ll immigrant visa applications,” and “[a]ll nonimmigrant visa
applications” “shall be reviewed and adjudicated by a consular officer.” 8 U.S.C. § 1202(b), (d).
“[A] consular officer may issue” visas to individuals who have “made proper application therefor,”
id. § 1201(a)(1), and the INA expressly deprives the Secretary of State of “those powers, duties,
and functions conferred upon the consular officers relating to the granting or refusal of visas,” id.
§ 1104(a). Because Defendants have not identified any statutory authority that would permit the
suspension of this ordinary process, the court concludes that Plaintiffs are likely to succeed on the
merits of their claim that Defendants’ No-Visa Policy is “not in accordance with law” and “in
excess of statutory . . . authority.” 5 U.S.C. § 706(2).
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2. No-Visa Policy – Arbitrary and Capricious
Next, the Gomez, Panda, and Aker Plaintiffs argue that Defendants’ No-Visa Policy is
arbitrary and capricious because it lacks any reasoned explanation, fails to consider reliance
interests, and fails to consider important aspects of the problem. See Gomez PI Mem. at 35–38;
Aker TRO/PI Mem. at 43; Panda PI Mem. 32–35. The court need not linger on these arguments
long. The Administrative Record reveals no justification for Defendants’ No-Visa Policy except
the incorrect assumption that it is compelled by the Proclamations and § 1201(g). See, e.g., CAR
24, 26, 28, 36, 38. In promulgating the No-Visa Policy, Defendants offered no rational explanation
for the policy, nor did they account for the serious consequences the policy would impose on DV- 2020 selectees, whose opportunity to receive visas will expire by the end of this fiscal year. The
court assumes that Defendants may in some circumstances permissibly prioritize the processing of
visas for applicants who are actually eligible to enter the United States, particularly given the
operational difficulties posed by the COVID-19 pandemic, but no such rationale was given.
Agency action that “stands on a faulty legal premise and [lacks] adequate rationale” is arbitrary
and capricious. Prill v. NLRB, 755 F.2d 941, 948 (D.C. Cir. 1985); see also SEC v. Chenery Corp.,
318 U.S. 80, 94 (1943) (“[A]n order may not stand if the agency has misconceived the law.”).
Plaintiffs are therefore likely to succeed on their argument that Defendants’ No-Visa Policy is
arbitrary and capricious.
3. No-Visa Policy – Notice and Comment Rulemaking
The Aker Plaintiffs additionally argue that Defendants’ No-Visa Policy violates the APA
because it was issued without giving notice and an opportunity to comment. See Aker TRO/PI
Mem. at 44–49. Defendants retort that the policy is at most an interpretive rule, and is not subject
to the same notice-and-comment rulemaking requirements as legislative rules. See Defs.’ Opp’n
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at 56–58. But a rule is legislative, not interpretive, “when it ‘change[s] the law.’” Ciox Health,
LLC v. Azar, 435 F. Supp. 3d 30, 66 (D.D.C. 2020) (quoting Nat’l Res. Def. Council v. EPA, 643
F.3d 311, 320 (D.C. Cir. 2011)). As discussed, Defendants’ No-Visa Policy is not an automatic
consequence of the Proclamations or 8 U.S.C. § 1201(g), and so it changes the law by suspending
processing and issuance of covered, non-exempt visa applicants and subjecting potentially exempt
applicants to additional eligibility requirements. Defendants’ policy therefore bears the hallmarks
of a legislative rule.
However, the court declines to rule on whether notice-and-comment rulemaking was
required for Defendants’ policy for three reasons. First, it is unnecessary. A ruling on this issue
would provide Plaintiffs no additional relief than they will otherwise receive. Second, Defendants
have not identified any authority granted to the Secretary of State to suspend the processing and
issuance of visas in the first place. The court cannot assess whether notice-and-comment
rulemaking is required absent this information. And finally, insofar as Defendants do have
authority to issue such a legislative rule, certain exceptions to the APA’s notice-and-comment
requirements might apply, see 5 U.S.C. § 553(a)(1), 553(b)(3)(B), but Defendants have not briefed
any of those exceptions. Therefore, the court declines to rule on the likelihood of Plaintiffs’
success on this issue.
4. Unreasonable Delay of Processing DV-2020 Visa Applications
The Gomez DV-2020 Plaintiffs and the Mohammed, Aker, and Fonjong Plaintiffs argue
that Defendants have unreasonably delayed and unlawfully withheld adjudicating their DV-2020
visa applications, and the Mohammed and Fonjong Plaintiffs also argue that this delay entitles
them to relief under the Mandamus Act. See Gomez Suppl. PI Mem. at 8; Mohammed PI Mem. at
16–20, 23; Aker TRO/Mot. at 49–50; Fonjong TRO/PI Mem. at 16–22, 25–26.
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brevity” of the September 30 deadline manifests Congress’s intent that the State Department
undertake good-faith efforts to ensure that diversity visas are processed and issued before the
deadline. In re People’s Mojahedin Org. of Iran, 680 F.3d 832, 837 (D.C. Cir. 2012). “[A]
reasonable time for agency action is typically counted in weeks or months, not years”; surely a
delay that results in the permanent loss of a statutory benefit is not reasonable. In re Am. Rivers
& Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004).
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 could effectively extinguish the
diversity program for a given year by simply sitting on its hands and letting all pending diversity
visa applications time out. Doing so would “plainly frustrate[] the congressional intent” to make
available 55,000 diversity immigrant visas each year. See In re People’s Mojahedin Org. of Iran,
680 F.3d at 837; see also 8 U.S.C. § 1151(e) (“The worldwide level of diversity immigrants is
equal to 55,000 for each fiscal year.”); id. § 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”).21 These
factors favor Plaintiffs.
Third and Fifth TRAC Factors. Defendants do not dispute that the third and fifth TRAC
factors favor a finding of unreasonable delay, see Defs.’ Opp’n at 53, and for good reason. The
prejudice from delay is dire—DV-2020 applicants might permanently lose their opportunity to
21 The only case Defendants cite in support of their position, Ghadami v. Department of Homeland Security, 19-cv- 00397 (ABJ), 2020 WL 1308376 (D.D.C. Mar. 19, 2020), involved a request for a waiver to an entry ban, for which
there was no expiration date or “any particular time frame” associated with processing the request. See id. at *2, *8.
That case is therefore inapposite.
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immigrate to the United States—and such delay is “less tolerable” in cases like this one, where
“human . . . welfare” is “at stake.” TRAC, 750 F.2d at 80.
Fourth Factor. The fourth TRAC factor—“the effect of expediting delayed action on
agency activities of a higher or competing priority,” see TRAC, 750 F.2d at 80—is a closer call,
but ultimately does not militate against a finding of unreasonable delay. Defendants argue that
“given that diversity visa selectees are ineligible to receive visas for the remainder of the fiscal
year, the agency understandably has not prioritized the scheduling of consular interviews for
diversity visa selectees.” Defs.’ Opp’n at 54. But, as discussed, that premise is plainly incorrect:
qualified DV-2020 selectees have no legal impediment to receiving visas.
Defendants argue more persuasively that “[t]he COVID-19 pandemic has disrupted the
State Department’s operations and strained its resources to an unprecedented degree[,]” and that
“[m]any embassies and consulates continue to suspend routine operations.” Id. The court is not
insensitive to these concerns, but they do not render reasonable the agency’s complete refusal to
process diversity visa applications for two reasons. For one, the agency’s declarant, Brianne
Marwaha, has informed the court that despite in-country “restrictions, the Department is
committed to processing visa services that are deemed ‘mission critical.’” See Marwaha Decl. ¶ 8.
As discussed below, the agency has not provided an adequate explanation for why it does not
consider DV-2020 applications mission critical. And two, posts have been resuming visa
processing to various degrees since July 15 of this year but are directed to treat DV-2020
applications as low priority. See CAR 35. There may well be certain consular offices that are
simply incapable of processing additional visa applications at this time, but that does not justify a
blanket withholding of processing worldwide.
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seeks identical relief.23 Likewise, any separate mandamus relief 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,” In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (citations
omitted).
5. Exclusion of DV-2020 Visa Applications from Mission Critical
Processing
Defendants’ interpretation of the Proclamations and 8 U.S.C. § 1201(g) as suspending the
processing and issuance of covered, non-exempt visa applications is not the only impediment the
diversity visa Plaintiffs must overcome. Since March 20, 2020, the State Department has also
suspended the routine processing of visas worldwide due to the COVID-19 pandemic, and has
only recently begun to resume routine services at some posts. See CAR 12–14, 35. The State
Department has continued to process “mission critical” applications, id., see also Marwaha Decl.
¶ 8, but DV-2020 applications are not being treated as mission critical, see 8/7/2020 Status Hr’g
Tr. at 19; see also CAR 26 (listing “examples of categories of visa services that should be
considered mission-critical,” but not including DV-2020 applications). Even as consular offices
resume routine visa operations, diversity visa applications eligible for an exception to the
23 Defendants suggest that Plaintiffs have failed to establish that any agency action has been unlawfully withheld
because they owe Plaintiffs no non-discretionary duty, and that fact “dooms Plaintiffs’ unreasonable-delay claim.”
Defs.’ Opp’n at 51. But the APA provides for judicial review of agency action “unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1) (emphasis added). Defendants identify no authority for the notion that a plaintiff must
prove the former to obtain relief on the latter. Moreover, agencies are separately required to “proceed to conclude a
matter presented to it” “within a reasonable time.” 5 U.S.C. § 555(b). Given this obligation under the APA, any
absence of an additional statutory mandate is “beside the point.” In re Am. Rivers & Idaho Rivers United, 372 F.3d
413, 419 (D.C. Cir. 2004). In any event, Defendants’ argument that they have no “nondiscretionary duty to afford
Plaintiffs the opportunity to apply for immigrant visas at consular interviews,” Defs.’ Opp’n at 51, is flatly contradicted
by § 1202(b) and 1202(d) of the INA, which require that all immigrant and nonimmigrant visa applications “shall be
reviewed and adjudicated by a consular officer,” 8 U.S.C. § 1202(b), (d).
Case 1:20-cv-01419-APM Document 123 Filed 09/04/20 Page 72 of 85