Al Shaleli v. Blinken ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KHALIL MUSLEH ABDO AL SHALELI, Case No.: 1:22-cv-01244-JLT-SAB et al., 12 ORDER DENYING EX PARTE REQUEST Plaintiffs, FOR PRELIMINARY INJUNCTION 13 v. (Doc. 5) 14 ANTONY J. BLINKEN, U.S. 15 SECRETARY OF STATE; et al., 16 Defendants. 17 18 I. INTRODUCTION 19 On September 29, 2022, Plaintiffs, six of whom are nationals of Yemen who were 20 selected for the Fiscal Year 2022 “Diversity Visa” program (“Applicant Plaintiffs”), filed this 21 action against various officials of the United States, including Antony J. Blinken, the U.S. 22 Secretary of State. (Doc. 1.) Very generally, the “diversity visa program makes as many as 55,000 23 visas available annually to citizens of countries with low rates of immigration to the United 24 States.” Shahi v. U.S. Dep’t of State, 33 F.4th 927, 928 (7th Cir. 2022) (citing 8 U.S.C. §§ 25 1151(e), 1153(c)). Because the number of diversity visa selectees typically exceeds the number of 26 available visas, the Department of State (“DOS”) holds a lottery to determine priority. Id. at 928. 27 Lottery winners are eligible to receive a visa only during the fiscal year in which they are selected 28 to apply. 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f). Selectees can then submit a visa application 1 and receive a “rank order” that determines the order in which they may be scheduled for an 2 interview to have their application adjudicated. See 22 C.F.R. §§ 42.33(b)–(d). Because the 3 diversity visa program restarts each fiscal year, consular officers may not issue diversity visas 4 after midnight on the last day of the fiscal year—September 30th. 22 C.F.R. §§ 42.33(a)(1), (d), 5 (f); see 31 U.S.C. § 1102. 6 Plaintiffs allege that their visa applications had not been adjudicated as of September 29, 7 2022, the day before the deadline. (See generally Doc. 1) They claim that DOS has “unlawfully 8 withheld” and/or “unreasonably delayed” the processing of their applications in violation of the 9 Administrative Procedure Act, 5. U.S.C. § 701, et seq. (Doc. 1 at ¶¶ 58, 76–90.) They also claim 10 entitlement under the Mandamus Act, 28 U.S.C. § 1361, to an order compelling Defendants to 11 discharge their statutory duties. (Doc. 1 at ¶¶ 91–106.) 12 On the same day they filed their complaint, Plaintiffs filed an ex parte motion for 13 emergency injunctive relief along with voluminous exhibits. (Doc. 5.) The motion requests an 14 order that would require Defendants to “hold out” diversity visa numbers past the September 30, 15 2022, fiscal year deadline for the Applicant Plaintiffs and their derivatives. (Doc. 2-2 at 25.) 16 The Court ordered service upon Defendants and set the matter for hearing the next day, 17 September 30, 2022. (Doc. 8.) In the late morning of September 30, the United States filed an 18 opposition (Doc. 13); shortly thereafter, Plaintiff’s filed a reply (Doc. 14). Plaintiffs’ counsel the 19 United States appeared via Zoom videoconference at 2:30 pm pacific time. The Court has read 20 and considered the entire record to the best of its ability given the limited time it has had to 21 dedicate to this matter. 22 II. LEGAL STANDARDS 23 Injunctive relief is an “extraordinary remedy, never awarded as of right.” Winter v. Nat’l 24 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). As such, the Court may only grant such relief 25 “upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. To prevail, the moving 26 party must show: (1) a likelihood of success on the merits; (2) a likelihood that the moving party 27 will suffer irreparable harm absent preliminary injunctive relief; (3) that the balance of equities 28 tips in the moving party’s favor; and (4) that preliminary injunctive relief is in the public interest. 1 Id. Local Rule 231 governs the filing of requests for TROs in this District. Relatedly, mandamus 2 is a “drastic and extraordinary” remedy. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 3 (2004). 4 III. ANALYSIS 5 A. Plaintiffs’ Visa Applications Appear to Have Been Denied. 6 Attached to the Government’s reply is the declaration of Maria Rosales, an attorney 7 adviser in the Office of the Assistant Legal Adviser for Consular Affairs within the U.S. 8 Department of State (“DOS”). (Doc. 13-1.) Ms. Rosales has authorization to search DOS’s 9 electronic Consular Consolidated Database for records of non-immigrant and immigrant visas 10 cases at U.S. embassies and consulates overseas. (Id., ¶ 1.) She states that as of September 30, 11 3033, five of the six Applicant Plaintiffs reflected that “on September 30, 2022, the consular 12 officer refused Plaintiff’s visa application under 8 U.S.C. § 1153(c).” (Id., ¶¶ 6, 7, 12, 18, 21.) As 13 to all six Applicant Plaintiffs Ms. Rosales attests that there is at least some record indicating that 14 the application was formally denied and that subsequent documentation did not overcome that 15 denial. 16 More specifically, the electronic records reflect the following: 17 - As to Plaintiff Nabil Hail Ahmed Yahya Haggag (#2022AS00003433), after appearing 18 for a consular interview on May 24, 2022, the consular officer refused the application 19 and requested additional documentation. (Id., ¶ 3.) Additional documentation was 20 submitted May 31, 2022, but the consular officer determined Plaintiff Haggag had not 21 overcome the prior refusal and informed Plaintiff as much. (Id., ¶ 4.) On September 6, 22 2022, Plaintiff Haggag submitted additional educational records, but after review the 23 consular officer again determined Plaintiff had not overcome the prior refusal and 24 informed Plaintiff of that decision. (Id., ¶ 5.) Once again on September 25, 2022, 25 Plaintiff Haggag provided additional documents, which were again determined to be 26 insufficient. The consular database reflects that on September 30, 2022, Plaintiff 27 Haggag’s visa application was refused under 8 U.S.C § 1153(c). (Id., ¶ 6.) 28 - As to Plaintiff Mohammed Rafeq Mohammed Qudam (#2022AS00004181), after 1 appearing on June 26, 2022, for a consular interview, the consular officer refused 2 Plaintiff’s visa application under 8 U.S.C. § 1153(c). (Id., ¶ 7.) On August 30, 2022, 3 Plaintiff provided additional documents regarding his education, but the consular 4 officer determined that Plaintiff had not overcome the prior refusal, and on September 5 14, 2022, the consular officer informed Plaintiffs’ counsel of that decision. (Id., ¶ 8.) 6 - As to Mohammed Esmail Qasem Hasan Al-Shawkhi (#2022AS00007861), after 7 appearing at a consular interview on July 28, 2022, the consular officer refused 8 Plaintiff’s visa application under 8 U.S.C. § 1201(g) that same day. (Id., ¶ 9.) On 9 August 22, 2022, Plaintiff Al-Shawkhi provided additional documents regarding his 10 education, but the consular officer determined that Plaintiff had not overcome the prior 11 refusal, and informed Plaintiff of the same. (Id., ¶ 10.) On September 25, 2022, 12 Plaintiff Al-Shawkhi again provided additional documents regarding his education, 13 but again the consular officer determined that Plaintiff had not overcome the prior 14 refusal, and the consular officer refused Plaintiff’s visa application under 8 U.S.C. 15 § 1153(c). (Id., ¶¶ 11–12.) 16 - As to Plaintiff Wadah Musleh Abdo Al-Shaleli (#2022AS00026428), after appearing 17 for a consular interview on July 28, 2022, the consular officer refused Plaintiff’s visa 18 application under 8 U.S.C. § 1201(g) on the same day and requested Plaintiff provide 19 additional documentation to establish his education. (Id., ¶ 13.) On August 23, 2022, 20 Plaintiff Al-Shaleli provided additional documents regarding his education, but after 21 review of those documents the consular officer determined that Plaintiff had not 22 overcome the prior refusal. (Id., ¶ 14.) On September 13, 2022, Plaintiff again 23 provided additional documents regarding his education, but the consular officer again 24 determined that Plaintiff had not overcome the prior refusal and informed Plaintiffs’ 25 counsel of the same. (Id., ¶ 15.) Additional documents were provided yet again on 26 September 25, 2022, but again they were found insufficient to overcome the prior 27 refusal. (Id., ¶ 16.) Finally, on September 28, 2022, Plaintiff provided yet more 28 documents regarding his education. On September 30, 2022, the consular office 1 refused Plaintiff Al-Shaleli’s application under 8 U.S.C. 1153(c). (Id., ¶¶ 16–17.) 2 - As to Plaintiff Tareq Saif Ali Al-Awdi (#2022AS00014634) after appearing for a 3 consular interview on August 25, 2022, the consular officer refused Plaintiff’s visa 4 application on the same day under 8 U.S.C. § 1201(g). (Id., ¶ 19.) On September 20, 5 2022, Plaintiff Al-Awdi provided additional documents regarding his education, but 6 on the same day the consular officer requested Plaintiff and his derivative family 7 member submit a DS-5535.1 (Id., ¶ 20.) On September 30, 2022, the consular officer 8 refused Plaintiff Al-Awdi’s visa application under 8 U.S.C. § 1153(c). (Id., ¶ 21.) 9 - Finally, as to Plaintiff Abdullah Saleh Nasser Salem (#2022AS00009109), after a 10 consular interview on July 28, 2022, the consular officer refused Plaintiff’s visa 11 application under 8 U.S.C. § 1201(g) the same day and requested Plaintiff Salem 12 provide additional documentation to establish his educational qualifications. (Id., ¶ 13 22.) On September 20, 2022, Plaintiff provided additional documents regarding his 14 education, but the consular officer determined that Plaintiff had not overcome the prior 15 refusal. (Id., ¶ 23.) 16 Accordingly, the Court finds that Plaintiffs’ visa applications have all been denied and that even 17 though some were afforded the opportunity to try to overcome those denials, they failed to do so.2 18 It appears that DOS may not have clearly and consistently communicated the status of these 19 applications to Plaintiffs, but any such failure to communicate is not a matter that is presently 20 before the Court. 21 B. The Doctrine of Consular Non-Reviewability 22 The primary consequence of this finding is that it triggers the application of the doctrine 23 of consular non-reviewability. Under that doctrine, this Court lacks jurisdiction to adjudicate a 24 challenge to a final determination by a consular official regarding a visa application. “[I]t has 25 1 The Court takes judicial notice of the fact that this is a form requesting supplemental information about various 26 subjects, including travel history, relatives, and employment history. See DS-5535, Supplemental Questions for Visa Applicants, available at: https://in.usembassy.gov/wp-content/uploads/sites/71/DS-Form-5535.pdf (last visited 27 September 30, 2022). 2 The Court noted at the hearing that Ms. Rosales’ Declaration does not attach any exhibits to support her statements. 28 Defendants are directed to supplement the record within five business days with appropriate exhibits to complete the 1 been consistently held that the consular official’s decision to issue or withhold a visa is not 2 subject either to administrative or judicial review,” subject to certain, limited exceptions. 3 Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir. 2008) (internal citation and quotation 4 omitted). As construed by the Ninth Circuit in Cardenas v. United States, a two-part test applies 5 for determining whether an exception to the doctrine applies. 826 F.3d 1164 (9th Cir. 2016), 6 “First, the consular officer must deny the visa under a valid statute of inadmissibility.” Id. at 1172 7 (internal citation and quotation omitted). “Second, the consular officer must cite an admissibility 8 statute that specifies discrete factual predicates the consular officer must find to exist before 9 denying a visa, or there must be a fact in the record that provides at least a facial connection to the 10 statutory ground of inadmissibility.” Id. “Once the government has made that showing, the 11 plaintiff has the burden of proving that the reason was not bona fide by making an affirmative 12 showing of bad faith on the part of the consular officer who denied [the] visa.” Id. “This test is the 13 only recognized exception to consular non-reviewability; there is no separate right under the APA 14 to review a consular officer's visa denial.” Munoz v. United States Dep’t of State, 526 F. Supp. 3d 15 709, 718–19 (C.D. Cal. 2021) 16 Though Plaintiffs’ counsel hypothesized at the hearing as to possible ways Plaintiff might 17 be able to show bad faith here, there is, from a practical perspective, no time left to develop such 18 a showing because the deadline for this fiscal years’ diversity visa lotter is today. As such, 19 Plaintiffs reiterate their request for the Court to “set aside” enough visas from the current pool so 20 that they might be available to issue to Applicant Plaintiffs and their derivatives after the 21 deadline. 22 C. Set Aside is Not an Appropriate Remedy Under the Circumstances 23 Plaintiffs point to several cases in which courts have “reserved” or “set aside” diversity 24 visa “slots” for those in the diversity visa program to allow time for legal claims to proceed. In 25 Gomez v. Trump, cited in Plaintiff’s brief (Doc. 2-2 at 7), the district court had previously found 26 that DOS had unlawfully refused to review and adjudicate FY 2020 diversity visa selectees’ visa 27 applications pursuant to Presidential Proclamation 10014 (which the court referred to as the “No- 28 Visa Policy”), had unreasonably delayed processing those applications, and had arbitrarily and 1 capriciously failed to explain its exclusion of such applications from its “COVID-19 Guidance” 2 setting forth the categories of visa applications eligible for “mission critical” and “emergency” 3 processing. 490 F. Supp. 3d 276, 281 (D.D.C. 2020), appeal dismissed, No. 20-5332, 2020 WL 4 7688214 (D.C. Cir. Dec. 14, 2020). As a remedy for these violations, the court ordered 5 Defendants to, among other things, “undertake good-faith efforts, directly and through their 6 designees, to expeditiously process and adjudicate DV-2020 diversity visa and derivative 7 beneficiary applications.” Id. at 281–82. Although visa adjudication did speed up, by September 8 24, 2020, the total number of diversity visas issued for FY 2020 was approximately 15,401, 9 roughly 28 percent of the 55,000 visas annually afforded under the INA. Id. at 282. 10 The Gomez plaintiffs later sought an order that would require DOS to reserve 11 approximately 30,000 diversity visas beyond the fiscal year pending final resolution of the 12 lawsuit. Id. at 288–89. The court thoroughly examined the existing caselaw concerning its 13 authority to issue such relief, nothing prior D.C. Circuit authority holding that where a plaintiff 14 filed suit and the court grants some relief—but not the visa—before October 1, a court “might 15 lawfully take steps to compel the government to process the plaintiff’s application after the fiscal 16 year has ended.” Id at 284 (citing Almaqrami v. Pompeo, 933 F.3d 774, 781–82 & n.2 (D.C. Cir. 17 2019)). In such a circumstance, “a post-deadline order would permissibly ‘give effect to the 18 district court's prior directive, entered before the end of the selection FY, to preserve an essential 19 (and otherwise expiring) ingredient of relief.’” Id. (quoting Almaqrami, 933 F.3d at 782). Gomez 20 also noted that in analogous circumstances, courts have suspended the operation of other statutory 21 lapse provisions. Id. at 285–86 (citing cases). 22 Among other things, the Gomez court found notable the fact that “that the delay in 23 processing of Plaintiffs’ applications is largely due to Defendants’ own unlawful interpretation of 24 Presidential Proclamation 10014 and 8 U.S.C. § 1201(g)—it is in no way the fault of Plaintiffs 25 themselves.” Id. at 285. Moreover, in rejecting the defendants’ argument that the court was in 26 effect asking DOS to “render performance that is impossible,” the court noted that DOS had “not 27 even attempted to shoulder the ‘heavy burden’ of demonstrating that ‘resource constraints’ or 28 other ‘practical challenges’ render it impossible to reserve and potentially process diversity visas 1 after September 30. Id. at 286 (quoting Am. Hosp. Assoc. v. Price, 867 F.3d 160, 168 (D.C. Cir. 2 2017)). Finally, in rejecting the defendants’ suggestion that an order to reserve visas would run 3 afoul of Congress’s intent, the court emphasized that it had “already found that Defendants 4 violated Congress's design when they nearly extinguished the FY 2020 diversity visa program 5 through their No-Visa Policy.” Id. (emphasis added); see also Goodluck v. Biden, 1:21-cv-01530- 6 APM (Docs. No. 46, 62) (reserving almost 7,000 visas for similar reasons in light of a “No-Visa” 7 policy). 8 More than 900 diversity visas were “reserved” under somewhat similar circumstances in 9 Rai v. Biden, 567 F. Supp. 3d 180, 192 (D.D.C. 2021), order clarified sub nom. Rai v. Blinken, 10 No. 21-CV-863-TSC, 2021 WL 5765883 (D.D.C. Oct. 25, 2021). There, the plaintiffs challenged 11 a regional “No-Visa” Policy suspending the issuance of visas to persons from certain countries 12 pursuant to Presidential Proclamation Nos. 9984 and 10143. Id. at 188. For various reasons, a 13 “No-Visa” policy remained applicable to diversity visa applicants from those regions until April 14 2021, precluding the processing of applications for the first six months of the fiscal year. See id. 15 at 192. Rai found that plaintiffs were likely to succeed on their claim that implementing that “No- 16 Visa” policy as to diversity visa applicants during that timeframe was unlawful. Id. at 194–96. 17 The court further found that during the missing six months of possible diversity visa application 18 processing, “embassies and posts could have issued approximately 966 diversity visas” but for the 19 unlawful policy. Id. at 203. 20 The Court finds these cases distinguishable. Most importantly, they concerned allegations 21 of programmatic policies and/or procedures that effectively blockaded the diversity visa program 22 as a whole (or in large part) for extended periods of time. These cases stand for the proposition 23 that a court must have some power to ensure that the existence of a statutory deadline for visa 24 processing does not afford government agencies and officials a blank check to flagrantly violate 25 the law. The problem with extending the logic of these cases to the present circumstances is a 26 practical one: there would be no stopping point. This case was filed at the 11th hour, one day 27 before the statutory deadline, giving the Court and the Government almost no time to consider or 28 1 | address the factual or legal circumstances presented.* Moreover, given the current procedural 2 | posture, the ball is in Plaintiff's court to demonstrate bad faith, which they have simply run out of 3 | time to even attempt to do. To set aside visas for these Plaintiffs under these circumstances would 4 | open the floodgates to countless, similar, last-second requests for such relief with records too 5 | threadbare to support any kind of finding of likelihood of success. 6 The Court recognizes that this case has enormous personal consequences for the Plaintiffs 7 | and that, like many hopeful immigrants to this country, Plaintiffs found themselves stuck in a 8 | procedural morass. Nonetheless, regretfully, the Court finds that the record does not permit the 9 | relief Plaintiffs are requesting. The motion for preliminary injunctive relief is DENIED. 10 IT IS SO ORDERED. 12 Dated: _ September 30, 2022 TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 | 3 As was noted by a judge of this Court in Council on Am.-Islamic Rels., California v. Blinken, 26 | No. 2:22-CV-01500-TLN-KJN, 2022 WL 4472914, at *3 (E.D. Cal. Sept. 26, 2022), “Plaintiffs’ delay arguably warrants outright denial of this motion. Under the Court’s Local Rules, a court 27 | faced with a TRO ‘will consider whether the applicant could have sought relief by motion for 28 preliminary injunction at an earlier date without the necessity for seeking last-minute relief.’ E.D. Cal. L.R. 231(b).”