Kassem v. Blinken ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAIDAN KASSEM, et al., No. 1:21-cv-01400-DAD-HBK 12 Plaintiffs, 13 v. ORDER GRANTING PRELIMINARY INJUNCTION 14 ANTONY J. BLINKEN, et al., (Doc. Nos. 1, 2) 15 Defendants. 16 17 18 On September 20, 2021, plaintiffs Raidan Kassem (“Raidan”), Osamah Abdulhameed 19 Muthana Nasser (“Osamah”), Raina Mohamed Abdulaim (“Raina”), and plaintiffs Osamah’s and 20 Rania’s two minor children, R.O.A.M.N. and R.O.A.M.N.(2), (“Minor Plaintiffs”), filed this 21 action against defendants Antony J. Blinken, Merrick B. Garland, Alejandro Mayorkas, U.S. 22 Department of State, U.S. Department of Homeland Security, U.S. Department of Justice, 23 Kentucky Consular Center, Jonathan Goodale Pratt, and United States Embassy, Djibouti. (Doc. 24 No. 1 (“Compl.”).) On the same day, plaintiffs filed an ex parte motion for an emergency 25 preliminary injunction. (Doc. No. 2-2.) On September 22, 2021, the government filed an 26 opposition to the pending motion, and plaintiffs filed a reply thereto on September 23, 2021. 27 (Doc. Nos. 8, 9.) Pursuant to General Order No. 617 addressing the public health emergency 28 posed by the coronavirus pandemic, the court takes this matter under submission to be decided on 1 the papers, without holding a hearing. For the reasons explained below, the court will grant 2 plaintiffs’ motion for preliminary injunction. 3 BACKGROUND 4 Plaintiff Raidan is a U.S. citizen who resides in Bakersfield, California. (Doc. No. 9 at 4– 5 5.) Plaintiffs Osamah, Raina, and the Minor Plaintiffs are Yemeni nationals (collectively, 6 “Yemeni Plaintiffs”), who presently reside in Yemen. (Compl. at ¶¶ 10–13.) 7 On June 6, 2020, plaintiff Osamah won the diversity visa lottery for the 2020 application 8 cycle, which is a program to facilitate the immigration of eligible individuals from countries with 9 historically low rates of immigration to the United States. (Id. at ¶ 10); see 8 U.S.C. § 1153(c) 10 (“Diversity Visa Program”); see also Iddir v. I.N.S., 301 F.3d 492, 494–95 (7th Cir. 2002) 11 (reviewing, generally, operation of Diversity Visa Program); Przhebelskaya v. U.S. Bureau of 12 Citizenship & Immigration Servs., 338 F. Supp. 2d 399, 400–02 (E.D.N.Y. 2004) (same). 13 Plaintiff Osamah alleges that he completed his diversity visa application, as did plaintiff Raina 14 and the Minor Plaintiffs as derivative applicants of plaintiff Osamah’s application. (Compl. at 15 ¶¶ 10–13, 36.) 16 Plaintiff Raidan alleges that he incorporated a corporation on February 23, 2021 in 17 reliance on plaintiff Osamah’s “selection documentary qualification confirmation,” that he 18 intends to hire plaintiff Osamah through the corporation, and that he has invested thousands of 19 dollars in immigration fees, as well as research and attorneys’ fees, in reliance upon plaintiff 20 Osamah’s visa being approved following the procedures set out in federal law, regulation, and 21 agency guidance. (Doc. Nos. 2-2 at 7; 2-4 at 212.) 22 The Yemeni plaintiffs allege that they have completed all requirements to obtain the 23 diversity visas, but that they have not been scheduled for consular visa interviews. (Compl. at 24 ¶¶ 41–49.) Under the diversity visa program, if a visa is not issued by the end of the fiscal year in 25 which an individual applies, here September 30, 2021, the applicants permanently lose their 26 lottery slot. See 8 U.S.C. § 1154(a)(l)(I)(ii)(II). 27 Plaintiffs’ complaint asserts four substantive causes of action. The first arises under the 28 Administrative Procedure Act (“APA”), which allows a court to “compel agency action 1 unlawfully withheld or unreasonably delayed.” (Compl. at ¶¶ 76–90); 5 U.S.C. § 706(1). The 2 second arises under the Mandamus Act, 28 U.S.C. §§ 1361, 1651, seeking to compel defendants 3 to perform a non-discretionary duty, including lawful adjudication of their visa applications. (Id. 4 at ¶¶ 91–106.) The third is a request for a declaratory judgment that the defendants have failed to 5 discharge a mandated official duty. (Id. at ¶¶ 107–110.) Plaintiffs’ fourth cause of action arises 6 under the Take Care Clause of the United States Constitution, seeking a judgment that the 7 Department of State’s suspension of and alleged untimely adjudication of visa applications is 8 invalid because it is “unfaithful” to the Immigration and Nationality Act of 1965 (“INA”). (Id. at 9 ¶¶ 111–115.) 10 As noted above, plaintiffs filed a motion for preliminary injunction to compel defendants 11 to conduct consular visa interviews and issue final decisions on plaintiffs’ pending visa 12 applications by September 28, 2021. (Doc. No. 2-2.) 13 LEGAL STANDARDS 14 A. Motion for Preliminary Injunction 15 “The proper legal standard for preliminary injunctive relief requires a party to demonstrate 16 ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 17 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction 18 is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting 19 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. 20 Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that 21 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”) 22 (quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth 23 Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that 24 serious questions going to the merits were raised and the balance of hardships tips sharply in the 25 plaintiff’s favor.” All. for Wild Rockies, 632 F.3d at 1134–35 (quoting Lands Council v. McNair, 26 ///// 27 ///// 28 ///// 1 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter, 555 U.S. 7.1 2 The party seeking the injunction bears the burden of proof as to each of these elements. See Klein 3 v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. v. 4 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege 5 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened 6 injury as a prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an 7 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 8 to such relief.” Winter, 555 U.S. at 22. 9 B. Administrative Procedure Act 10 Pursuant to the APA, a court “shall compel agency action unlawfully withheld or 11 unreasonably delayed” where an agency fails to take a discrete action it is required to take. 12 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). A plaintiff 13 asserting a claim of unreasonable delay under the APA must show that the agency (1) had a 14 nondiscretionary duty to act and (2) unreasonably delayed in acting on that duty. Norton, 542 15 U.S. at 63–65; 5 U.S.C. §§ 555(b), 701(a)(2). 16 In evaluating the reasonableness of an agency delay, a court considers six factors: 17 (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 18 indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for 19 this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and 20 welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or 21 competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the 22 court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ 23 In re People’s Mojahedin Org. of Iran, 680 F.3d 832, 836–37 (D.C. Cir. 2012) (quoting 24 25 1 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” All. for the Wild 26 Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of 27 hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 28 injunction is in the public interest.” Id. at 1135. 1 Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984) (“TRAC”)). [T]he 2 central question is whether the agency’s delay is so egregious as to warrant mandamus.” Id. at 3 837 (internal quotation marks omitted). 4 ANALYSIS 5 Before turning to the merits of the pending motion for preliminary injunction, the Court 6 must address two threshold issues. The United States has challenged the standing of all of the 7 plaintiffs and, relatedly, whether venue is proper in this district. 8 A. Standing 9 The government briefly argues that the Yemeni plaintiffs lack standing to bring this action 10 because they do “not have a constitutional right to obtain the diversity visa.” (Doc. No. 8 at 10.) 11 The government asserts that an alien outside the United States, like the Yemeni plaintiffs, 12 “typically lacks standing to challenge immigration determinations.” (Id. (quoting Yuk-Ling Wu 13 Jew v. Att’y Gen., 524 F. Supp. 1258, 1259 n.4 (D.D.C. 1981) (citing Kleindienst v. Mandel, 408 14 U.S. 753, 762 (1972)).) 15 Nonresident aliens lack standing to challenge final consular decisions under the 16 “constitutional violation” exception to the doctrine of consular nonreviewability. See Mohamed 17 v. Pompeo, No. 1:19-cv-01345-LJO-SKO, 2019 WL 4734927, at *2 (E.D. Cal. Sept. 27, 2019) 18 (collecting cases); Benjamin v. United States Dep’t of State, No. 17-CV-03587-LB, 2018 WL 19 1142124, at *4 (N.D. Cal. Mar. 2, 2018) (citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)) 20 (finding that nonresident alien does not have standing to challenge the denial of a visa 21 application); Mostofi v. Napolitano, 841 F. Supp. 2d 208, 210–12 (D.D.C. 2012) (reviewing the 22 exception to the doctrine of consular nonreviewability applicable where a U.S. citizen or legal 23 resident plaintiff asserts that the visa decision violates a constitutionally protected liberty 24 interest). But here, like the plaintiffs in Mohamed found to have had standing, the consular 25 nonreviewability doctrine is wholly inapplicable because, as discussed below, no visa 26 determination has been made. See Mohamed, 2019 WL 4734927 at *2. 27 Accordingly, the court finds the Yemeni plaintiffs have standing to sue. As alleged in the 28 complaint and pending motion for preliminary injunction, the Yemeni plaintiffs have suffered an 1 injury in fact (unreasonable delay in processing their visa applications), the injury is traceable to 2 defendants, and a favorable decision here will redress their injury. See id. (finding the alien 3 plaintiffs had standing to sue where their visa applications had been completed but not yet 4 received a final determination on the eve of the expiration of their diversity visa eligibility); 5 Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1102 (9th Cir. 2007) (articulating the basic elements of 6 Article III standing). The Yemeni plaintiffs also “plainly fall within the zone of interest of the 7 Diversity Visa Program.” See Mohamed, 2019 WL 4734927 at *2; see also V. Real Estate Grp., 8 Inc. v. U.S. Citizenship & Immigration Servs., 85 F. Supp. 3d 1200, 1206 (D. Nev. 2015) (noting 9 that, in an APA challenge to visa adjudication, whether the plaintiff fell within zone of interest of 10 “relevant provisions of the Immigration and Nationality Act” is not an “especially demanding” 11 test). 12 The government also argues that plaintiff Raidan lacks standing because his connection to 13 this case––payment of visa and attorneys’ fees for the Yemeni plaintiffs and incorporation of a 14 corporation and the related offer of employment to plaintiff Osamah––is insufficient to support 15 his standing in a Diversity Visa Program case given that diversity visas are submitted by the visa 16 applicant from overseas, not by a United States sponsor. (Doc. No. 8 at 12–13.) The government 17 asserts that there is no precedent for the proposition that a prospective employer may have 18 standing to challenge any aspect of the diversity visa process in judicial proceedings. (Id. at 13.) 19 However, the government does not cite any precedent for the proposition that prospective 20 employers lack standing in such cases. (Id.) Modern jurisprudence suggests a “trend [ ] toward 21 enlargement of the class of people who may protest administrative action” under the APA. 22 Raduga USA Corp. v. U.S. Dep’t of State, 440 F. Supp. 2d 1140, 1148 (S.D. Cal. 2005) (quoting 23 Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970)). The 24 expedited nature of this motion has not permitted the court to examine thoroughly whether 25 plaintiff Raidan falls within the zone of interest of the statutory scheme at issue. See V. Real 26 Estate Grp., 85 F. Supp. 3d at 1208. Nonetheless, although the Diversity Visa Program does not 27 provide a direct role for a potential employer, plaintiff Raidan’s “assertions of economic impact 28 ///// 1 appear to be sufficient to confer standing upon him under the APA.” See Mohamed, 2019 WL 2 4734927 at *3. 3 B. Venue 4 The government also contends that the Eastern District of California is not the proper 5 venue for this action, arguing that plaintiffs should have brought suit in the District of Columbia, 6 where other selectees of the Diversity Visa Program have previously brought suit. (Doc. No. 8 at 7 11–12, 14.) 8 Under 28 U.S.C. § 1391(e), which governs venue in which a defendant is an officer, 9 employee, or agency of the United States, a civil action may be brought in “any judicial district in 10 which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving 11 rise to the claim occurred, or a substantial part of property that is the subject of the action is 12 situated, or (3) the plaintiff resides if no real property is involved in the action.” 13 As plaintiffs note, plaintiff Raidan, as a resident of Bakersfield, California, is the only 14 direct link to this judicial district. (Doc. No. 9 at 4.) If he has standing, then venue is undeniably 15 proper here under 28 U.S.C. § 1391(e)(2). If plaintiff Raidan does not have standing, however, 16 there is no obvious basis for this court to find that § 1391(e) suggests venue is proper in this 17 district. Under 28 U.S.C. § 1406, “[t]he district court of a district in which is filed a case laying 18 venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer 19 such case to any district or division in which it could have been brought.” Given the urgent 20 nature of the pending motion, even assuming venue is improper in this district, the interests of 21 justice would favor transfer, rather than dismissal. Furthermore, a transferor court may take some 22 action prior to transfer if necessary to preserve the rights of the parties. See Bel Canto Design, 23 Ltd. v. MSS HiFi, 813 F. Supp. 2d 1119, 1123–24 (D. Minn. 2011) (continuing temporary 24 restraining order while action is moved to another venue). Here, the case was filed in this district 25 in good faith based upon the “not wholly unreasonable premise that plaintiff [Raidan] has 26 standing and therefore that venue is proper here.” See Mohamed, 2019 WL 4734927 at *3. 27 Based on the requirement that a successful visa applicant must arrive in the United States 28 before the close of the FY 2020 Diversity Visa Program, the very act of transferring this case 1 would cause the visa opportunity for the Yemeni plaintiffs to expire. See Mohamed, 2019 WL 2 4734927 at *3. Therefore, the court will evaluate the merits of the pending motion for 3 preliminary judgment. 4 C. Motion for Preliminary Injunction 5 As noted at the outset, as the party seeking preliminary injunctive relief, plaintiffs must 6 make a sufficient showing as to all four prongs of the Winter test in order to be entitled to the 7 requested preliminary relief. All. for the Wild Rockies, 632 F.3d at 1135. 8 Here, it is clear that plaintiffs will suffer irreparable harm in the absence of preliminary 9 relief. As the government acknowledges, plaintiffs’ eligibility under the Diversity Visa Program 10 expires at the end of the fiscal year on September 30, 2021. 8 U.S.C. § 1153(e)(2); 22 C.F.R. 11 § 42.33(f); (Doc. No. 8 at 5). Plaintiffs are entitled to the opportunity to have their visa 12 adjudicated as prescribed by 8 U.S.C. § 1202(b), and risk permanently and irreparably losing that 13 opportunity at the end of the 2021 fiscal year. See P.K. v. Tillerson, 302 F. Supp. 3d 1, 10 14 (D.D.C. 2017) (granting injunctive relief in light of “the potential irreparable harm that Plaintiffs 15 face[d]” of not having their visas adjudicated); Gomez v. Trump (“Gomez I”), 485 F. Supp. 3d 16 145, 196 (D.D.C. 2020), amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020), and amended in 17 part sub nom. Gomez v. Biden (“Gomez III”), No. 20-cv-01419-APM, 2021 WL 3663535 (D.D.C. 18 Aug. 17, 2021). Below, the court will turn to the remaining factors. 19 1. Likelihood of Success on the Merits 20 Plaintiffs also bear the burden of demonstrating that they are likely to succeed on the 21 merits of this action or, at the very least, that “serious questions going to the merits were raised.” 22 All. for the Wild Rockies, 632 F.3d at 1131. 23 Here, plaintiffs contend that defendants have a mandatory, nondiscretionary duty to act 24 upon plaintiffs’ pending visa applications, and that defendants have unreasonably delayed and 25 unlawfully withheld adjudication of their visa applications in violation of § 706(1) of the APA. 26 (Doc. No. 2-2 at 16–17.) In opposition, defendants argue that plaintiffs have not alleged “a 27 nondiscretionary duty to take action . . . within a certain timeframe” and that there is no 28 unreasonable delay because other diversity visa applications are being processed. (Doc. No. 8 at 1 15–17.) Defendants also contend plaintiffs’ applications are not unreasonably delayed because 2 the Djibouti Embassy is “likely already at capacity for its immigrant visa appointments for 3 September,” and that plaintiffs’ visa applications have yet to be deemed documentarily qualified, 4 and thus rank below other diversity visa applications waiting for consular visa interviews and 5 final determinations. (Id. at 6–7.) 6 The court agrees with plaintiffs that defendants have a nondiscretionary duty to review 7 and adjudicate plaintiffs’ visa applications. As many other district courts have found, 8 U.S.C. 8 § 1202(b) “imposes a mandatory duty on consular officers to review and adjudicate immigrant 9 visa applications.” Filazapovich v. Dep’t of State, No. 21-cv-00943-APM, 2021 WL 4127726, at 10 *17 (D.D.C. Sept. 9, 2021) (quoting Gomez III, 2021 WL 3663535 at *20). Section 1202(b) 11 dictates that “immigrant visa applications shall be reviewed and adjudicated by a consular 12 officer.” 8 U.S.C. § 1202(b) (emphasis added). There is therefore a “precise section of the INA” 13 that imposes a mandatory duty on defendants to review and adjudicate plaintiffs’ visa 14 applications. See Filazapovich, 2021 WL 4127726 at *17 (holding that “Defendants had a 15 specific and nondiscretionary obligation to review and adjudicate Plaintiffs’ immigrant visa 16 applications”); Anglers Conservation Network v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 2016) 17 (finding that legislation using the word “‘shall’ indicates a mandatory duty”); Meina Xie v. Kerry, 18 780 F.3d 405, 406 (D.C. Cir. 2015) (noting that plaintiff “points to a precise section of the INA” 19 in establishing a nondiscretionary duty). 20 Defendants’ argument that no unreasonable delay has occurred in this case because other 21 visa applications are being processed “misapprehends the scope of the section 706(1) [of the 22 APA] inquiry.” See Filazapovich, 2021 WL 4127726 at *17. The issue is “whether Defendants 23 have taken action vis-à-vis the specific Plaintiffs bringing the claims of unreasonable delay or 24 unlawful withholding,” not whether defendants have acted at all on similarly situated 25 applications. Id. Defendants have not cited any authority for the proposition that because an 26 agency acts on some visa applications that it cannot be sued for unreasonably delaying its 27 consideration of other applications. Id. As such, the court turns to the analysis of the six TRAC 28 ///// 1 factors to determine the question of whether defendants have unreasonably delayed processing 2 and adjudicating plaintiffs’ visa applications. 3 a. TRAC Factors One and Two Favor Plaintiffs: Rule of Reason or Timetable 4 5 Defendants argue that consideration of the first two TRAC factors weigh in their favor 6 because, in lieu of an express timetable provided by Congress, the Department of State “has 7 outlined a rational and reasonable scheme to prioritize certain visa applicants as services resume” 8 that prioritizes immediate relative, K-1 fiancé, and family preference immigrant visa applications. 9 (Doc. No. 8 at 18.)2 However, Congress has provided “[an]other indication of the speed with 10 which it expects” defendants to process immigrant visas: the fiscal year cutoff for processing 11 diversity visas. TRAC, 750 F.2d at 80 (“where Congress has provided a timetable or other 12 indication of the speed with which it expects the agency to proceed in the enabling statute, that 13 statutory scheme may supply content for this rule of reason”); Gomez I, 485 F. Supp. 3d at 196 14 (holding that “[t]he specificity and relative brevity” of the September 30 deadline manifests 15 Congress’s intent that the State Department undertake good-faith efforts to ensure that diversity 16 visas are processed and issued before the deadline”). Congress’s instructions are the “most 17 important” consideration in the TRAC analysis. In re People’s Mojahedin Org. of Iran, 680 F.3d 18 at 837. Although the government points to the Department of State’s prioritization of other visa 19 categories as an explanation for the delay in this case, “Congress legislated the fiscal year 20 deadline knowing that the Department of State would have other, competing draws on its 21 resources.” Filazapovich, 2021 WL 4127726 at *18; see also In re People’s Mojahedin, 680 F.3d 22 at 837 (“Congress undoubtedly knew the enormous demands placed upon the Secretary and 23 nonetheless limited her time to act”). Furthermore, as the Director of the Kentucky Consular 24 Center acknowledges, defendants created this delay due to their own actions in interpreting 25 Presidential Proclamation 10014 by not scheduling any diversity visa interview appointments for 26 2 The immediate relative, K-1 fiancé, and family preference immigrant visa applications 27 prioritized by the Department of State, however, would appear to be distinguishable from the category in which plaintiffs fall since applications in those prioritized categories apparently do 28 not expire or are subject to renewal. 1 the 2021 fiscal year until late February 2021 for March appointments when the “[s]cheduling for 2 a normal program year first starts in August for appointments in October.” (Doc. No. 8-2 at ¶¶ 7– 3 9.) It was “plainly unreasonable for [defendants] to stop processing visas for five months of FY 4 2021 based on an erroneous interpretation of the law.” Filazapovich, 2021 WL 4127726 at *18 5 (citing Gomez III, 2021 WL 3663535, at *19 (finding that “surely a delay that results in the 6 permanent loss of a statutory benefit is not reasonable”)). 7 Accordingly, the undersigned rejects the government’s argument in this regard and 8 concludes that consideration of the TRAC factors one and two favor the granting of plaintiffs’ 9 motion for preliminary injunctive relief. 10 b. TRAC Factors Three and Five Favor Plaintiffs: Health, Welfare, and the Interests Prejudiced 11 12 The parties also dispute TRAC factors three and five, which consider delays “when human 13 health and welfare are at stake” and “the nature and extent of the interest prejudiced by delay.” 14 TRAC, 750 F.2d at 79–80. Plaintiffs argue that their health and welfare interests are prejudiced 15 by “the real risk that the family will be unable to immigrate to the United States together and 16 [p]laintiffs will suffer economic loss and deprivation of property.” (Doc. No. 2-2 at 18.) The 17 government, while acknowledging the impact on plaintiffs’ lives, argues that the relief plaintiffs 18 seek “would simply benefit [p]laintiffs to the detriment of other immigrant visa applicants” who 19 would be prejudiced in the same manner plaintiffs contend that they are being harmed. (Doc. No. 20 8 at 19.) 21 On balance, the undersigned concludes that consideration of the third and fifth TRAC 22 factors favor plaintiffs. Plaintiffs have “established dire prejudice because they risk losing their 23 (likely) once-in-a-lifetime opportunity to immigrate to the United States and have demonstrated 24 how delays in visa adjudication threaten their welfare.” Filazapovich, 2021 WL 4127726 at *19 25 (quoting Gomez III, 2021 WL 3663535, at *19). Indeed, defendants concede that plaintiffs here 26 have established such prejudice. (Doc. No. 8 at 19.) As the district court in Filazapovich noted, 27 defendants’ arguments that prioritizing plaintiffs over other applicants merely shifts the prejudice 28 1 to other applicants are arguments better suited to the analysis of the fourth TRAC factor, 2 addressed below. Filazapovich, 2021 WL 4127726 at *19; see also TRAC, 750 F.2d at 80 3 (describing the fourth factor to be considered as “the effect of expediting delayed action on 4 agency activities of a higher or competing priority”). 5 c. TRAC Factor Four is Neutral: Effect of Expediting Action on Higher or Competing Priorities 6 7 Defendants contend that the granting of plaintiffs’ requested relief is inappropriate 8 because it “simply ‘reorder[s]’ a queue of applications seeking adjudication.” (Doc. No. 8 at 18 9 (citing Tate v. Pompeo, No. 20-cv-3249-BAH, 2021 WL 148394, at *11 (D.D.C. Jan. 16, 2021).) 10 Defendants argue that the conclusion reached by the district court in Tate should apply “even 11 more powerfully here . . . because of the challenges presented by the COVID-19 pandemic, which 12 has created unusual and extreme resource and personnel challenges for Defendants.” (Id. at 19 13 (citing Liu v. Blinken, No. 21-cv-00629-TJK, 2021 WL 2514692, at *7 (D.D.C. June 18, 2021).) 14 Defendants’ argument in this regard is certainly not without merit. But defendants did not 15 comply with their statutory and nondiscretionary obligation to process diversity visa applications 16 pursuant to 8 U.S.C. § 1202(b) and their failure to do so unlawfully delayed the processing of 17 plaintiffs’ applications despite plaintiff Osamah’s selection for that processing fifteen months 18 ago. See Filazapovich, 2021 WL 4127726 at *20; (Doc. No. 2-2 at 19). Further, as the district 19 court in Filazapovich explained, “defendants’ complete cessation of processing diversity visas 20 based on an erroneous interpretation of the law distinguishes Plaintiffs’ cases from cases . . . 21 where the plaintiffs relied wholesale . . . on agency prioritization.” Id.; (Doc. No. 8-2 at ¶¶ 7–9 22 (noting that FY2021 diversity visa appointments were not scheduled until late February, in 23 contrast to the usual August scheduling, due to Presidential Proclamation 10014). As such, a 24 finding of unreasonable delay in this case is not a mere reorganization of priorities as 25 contemplated by the court in Tate, but “a rectification of Defendants’ decision to flout the INA by 26 sitting on its hands.” Filazapovich, 2021 WL 4127726 at *20; see also Tate, 2021 WL 148394, at 27 *11. 28 1 Accordingly, the State Department’s lack of resources to adequately address the backlog 2 of visa applications caused in part by the COVID-19 pandemic is not dispositive in resolving the 3 pending motion. The court therefore concludes that consideration of the fourth TRAC factor is 4 neutral in this context. 5 d. TRAC Factor Six is Neutral: Agency Impropriety 6 The sixth TRAC factor, which considers the role of agency impropriety in the delay, is 7 also neutral here. See TRAC, 750 F.2d at 80. Defendants argue that, as of February 2021, they 8 began processing DV-2021 applications, have since adjudicated at least 3,000 applications, and 9 that there is no “specific, unequivocal command” to adjudicate all diversity visa applications 10 before the end of the fiscal year. (Doc. No. 8 at 19–20.) Plaintiffs make no argument as to the 11 consideration of this factor. 12 As noted above, the court “need not find any impropriety lurking behind agency lassitude 13 in order to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80. Here, 14 plaintiff Osamah was first selected for the Diversity Visa Program fifteen months ago in June 15 2020. (Doc. No. 2-2 at 19.) Despite the plaintiffs following subsequent State Department 16 instructions to complete their applications, no further processing of the applications has occurred. 17 (Id.) On balance, consideration of the TRAC factors support a finding that defendants have 18 unreasonably delayed processing plaintiffs’ diversity visa applications, such that plaintiffs are 19 likely to succeed on their unreasonable delay claim. 20 2. Balance of Equities and Public Interest 21 Plaintiffs must also demonstrate that that “the balance of the equities tips in [their] favor[ ] 22 and that an injunction is in the public interest.” Winter, 555 U.S. at 20. The balance of the 23 equities and the public interest “merge when the Government is the opposing party.” Nken v. 24 Holder, 556 U.S. 418, 435 (2009). 25 Plaintiffs contend that the issuance of an injunction is in the public interest here because 26 the public interest will be served in requiring defendants to fulfil their mandatory duties, and in 27 diversity visa applicants having their applications timely considered without unreasonable delay. 28 (Doc. No. 2-2 at 22–23.) Plaintiffs also argue that the balance of equities tips in their favor 1 because they have complied in good faith with the requirements of the diversity visa program, 2 including fulfilling all necessary procedures, and “seek only those actions of [d]efendants that are 3 required under the law.” (Id. at 22 (citing Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 4 1983).) 5 The court agrees. The public and plaintiffs have a countervailing interest “in having 6 governmental agencies abide by the federal laws that govern their existence and operations.” 7 League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation 8 marks omitted). While the public certainly has an interest in defendants processing visas such as 9 the immediate relative visas that the State Department has prioritized, “it also has an interest in 10 diversity visa applicants like plaintiffs having their applications considered without the delays 11 perpetuated by Defendants’ unlawful actions.” See Filazapovich, 2021 WL 4127726 at *25. 12 Additionally, and perhaps most importantly, “diversity visa applicants are in a unique position 13 among visa applicants because their eligibility for a visa ends on the last day of the fiscal year.” 14 Id. Therefore, the court concludes that the balance of the equities and the public interest favor the 15 granting of the requested injunctive relief in this case. 16 CONCLUSION 17 For the reasons stated above, the court finds that defendants have unreasonably delayed 18 processing of the Yemeni Plaintiffs’ visa applications in light of the impending statutory 19 deadlines and that all other requirements for mandatory injunctive relief have been satisfied. 20 Therefore, the court mandates defendants and their agents, employees, officers, and 21 representatives to review the documents, schedule a consular visa interview, and issue a decision 22 on the visa applications of Osamah Abdulhameed Muthana Nasser and all derivatives in 23 defendants’ case number 2021AS35359, on or before noon California time, September 28, 2021. 24 The adjudication must occur before the end of the fiscal year on September 30, 2021; otherwise 25 ///// 26 ///// 27 ///// 28 ///// 1 | plaintiffs will effectively lose permanently the opportunity to apply for the immigrant visas to 2 || reside permanently in the United States. 3 | IT IS SO ORDERED. a 4 Li. wh F Dated: _ September 24, 2021 Sea 1" S098 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15