Dehghanighanatghestani v. Mesquita ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAHZIAR
DEHGHANIGHANATGHESTANI,
Plaintiff,
Civil Action No. 22-2595 (CKK)
v.
MARIO MESQUITA, et al.,
Defendants.
MEMORANDUM OPINION
(September 22, 2022)
Plaintiff Mahziar Dehghanighanatghestani is a selectee of the Diversity Visa Lottery for
the 2022 fiscal year. By statute, his eligibility to receive a diversity visa expires on September 30,
2022. Plaintiff was interviewed by a consular officer at the United States Embassy in Vienna,
Austria on July 26, 2022, but subsequently received notice that his visa petition was “refused”
under INA § 221(g), which directed Plaintiff to provide additional documentation in support of his
visa application. Based on the record presently before the Court, Plaintiff’s application remains
in “administrative processing.”
Plaintiff filed an [6] Emergency Motion for a Temporary Restraining (“TRO”) and
Preliminary Injunction (“PI”) on September 2, 2022. Therein, Plaintiff requests an order
“enjoining” Defendants “from continuing the delay in processing his diversity visa.” Pl.’s TRO/PI
Mot. at 11. In response to Plaintiff’s TRO Motion, Defendants filed a consolidated [9, 10]
Opposition and Cross-Motion to Dismiss. Upon consideration of the pleadings, 1 the relevant legal
1
The Court’s consideration has focused on the following:
ƒ Plaintiff’s Emergency Motion for Temporary Restraining Order and Preliminary
Injunction (“Pl.’s TRO/PI Mot.”), ECF No. 6;
1
authorities, and the record as a whole, the Court DENIES Plaintiff’s [6] Motion for a Temporary
Restraining Order and HOLDS IN ABEYANCE [9] Defendants’ Motion to Dismiss. The parties
shall file a joint status report on SEPTEMBER 30, 2022, updating the Court on the status of
Plaintiff’s visa application and addressing whether, in light of that status, Plaintiff shall voluntarily
dismiss this case, whether his claims are moot, and/or whether the Court should proceed to rule on
Defendants’ motion to dismiss, which is now ripe.
I. BACKGROUND
A. The Diversity Visa Program
Under the Immigration and Nationality Act (“INA”), “Congress has provided for up to
55,000 immigrant diversity visas to be distributed each fiscal year to foreign nationals that hail
from countries with historically low levels of immigration to the United States.” Filazapovich v.
Dep’t of State, No. 21-cv-943 (APM), 2021 WL 4127726, at *2 (D.D.C. Sept. 9, 2021) (citing 8
U.S.C. §§ 1151(e), 1153(c)). “Millions of hopefuls enter a lottery for the chance to apply for one
of the 55,000 allotted diversity visas.” Id. (citing Gomez v. Trump (“Gomez I”), 485 F. Supp. 3d
145, 159 (D.D.C. 2020)). The selectees of the lottery “submit an application and various
documents to be eligible for a visa number,” which can be used only during the fiscal year for
which the selectee applied. Almaqrami v. Pompeo, 933 F.3d 774, 776–77 (D.C. Cir. 2019).
ƒ Defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion to
Dismiss Plaintiff’s Complaint and Defendants’ Opposition to Plaintiff’s Motion for
TRO/PI (“Defs.’ Opp’n & Mot. to Dismiss”), ECF Nos. 9, 10;
ƒ Plaintiff’s Memorandum of Points & Authorities in Opposition to Defendants’ Motion to
Dismiss and [in Reply] to Defendants’ Opposition to Plaintiff’s Motion for TRO/PI (“Pl.’s
Reply”), ECF No. 12; and
ƒ Defendants’ Reply in Further Support of Defendants’ Motion to Dismiss Plaintiffs’
Complaint (“Defs.’ Reply”), ECF No. 15.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not
be of assistance in rendering a decision. See LCvR 7(f).
2
Selectees are required to submit supporting documents to the Kentucky Consular Center
(KCC), which then reviews the submitted materials for completion, and, upon deeming the
applicant “documentarily qualified,” schedules an interview at a local consular office for the
applicant when [his] regional lottery rank number is about to become current. 9 FAM
502.6-4(d)(2). As of December 9, 2021, the Department of State “initiated a pilot program” for
FY2022, pursuant to which diversity visa lottery selectees “need only submit a complete DS-260”
and “do not need to submit any other required documents” to the KCC before it “is able to complete
processing of their case.” Defs.’ Opp’n & Mot. to Dismiss Ex. B, Declaration of Morgan Miles
(“Miles Decl.”) ¶ 6, ECF No. 9-4. Rather, “selectees will submit all required supporting
documents to the designated interviewing post, which will evaluate the documents.” 2 Id. The
designated post is based on the “selectee’s declared place of residence.” Id. ¶ 7.
A visa interview is scheduled only if (1) the selectee has submitted the required DS-260
application—or, if “prior to December 9, 2021, a completed DS-260 and required supporting
documents”; (2) the designated post has an appointment available; (3) KCC has completed its
processing of the selectee’s case; and (4) a visa number has been allocated to the selectee and “that
case is the next case in the selection order.” Id. ¶ 9. “[T]he availability of interview appointments
may depend on the available resources and competing demands of consulates in an applicant’s
country of residence.” Gjoci v. Dep’t of State, Case No. 21-cv-294-RCL, 2021 WL 3912143, at
*2 (D.D.C. Sept. 1, 2021); see also Miles Decl. ¶ 9 (explaining that each post has a “separate
processing queue”).
2
It is not clear from the record whether Plaintiff’s application was part of the “pilot program”
referenced in the Miles Declaration; however it appears that Plaintiff submitted his visa application
before this program became effective. See Compl. ¶ 1.
3
All immigrant visa applications must be reviewed and adjudicated by a consular officer.
8 U.S.C. § 1202(b). “Because the diversity visa program restarts each fiscal year, consular officers
may not issue diversity visas after midnight on September 30 of the [fiscal year].” Almaqrami,
933 F.3d at 777. As a result, “[i]f the selectee does not receive a visa by the end of the fiscal year
. . he is out of luck[.]” Gomez I, 485 F. Supp. 3d at 159.
Demand for diversity visas “regularly outstrips supply.” Id. (noting, for example, that “in
Fiscal Year 2018, there were 14.7 million qualified entries”); see also P.K. v. Tillerson, 302 F.
Supp. 3d 1, 3 (D.D.C. 2017) (“Millions of people enter the lottery every year.”). Moreover, the
“total number of lottery selectees exceeds the statutory numerical limit of visas” allocated to the
DV program because if the Department “did not over select DV participants, it would not be able
to use the full allocation of DV numbers.” Miles Decl. ¶ 4. “Those selected for the [diversity visa]
program are not guaranteed a visa—only the opportunity to apply for one.” P.K., 302 F. Supp. 3d
at 3. According to Defendants, 63,753 people were selected from the Fiscal Year 2022 Diversity
Visa (“DV-2022”) lottery, accounting for 118,513 diversity visa applicants (including selectees’
spouses and children) seeking one of approximately 55,000 available visas. Miles Decl. ¶ 3.
B. Factual Background
Plaintiff Mahziar Dehghanighanatghestani is a citizen of Iran who presently resides in
Austria. Compl. ¶¶ 2, 9; Pl.’s TRO/PI Mot. Ex. B, at 16, ECF. No. 6-2. 3 On May 8, 2021, Plaintiff
was notified that he had been selected in the diversity visa lottery for FY2022. Compl. ¶ 1; Pl.’s
TRO/PI Mot. Ex. A, ECF No. 6-1. He applied for a diversity visa in September 2021. Compl. ¶ 1.
3
Exhibit B to Plaintiff’s TRO Motion includes several different email chains. The Court’s
citations to this exhibit refer to the page number generated by ECF at the top of each page.
4
On April 28, 2022, Plaintiff contacted the U.S. Consulate in Vienna, indicating that his visa
number was “current” as of the “last Visa Bulletin for June” and that his “documents were
processed in March.” Pl.’s TRO/PI Mot. Ex. B, at 16. He requested an interview, to which he
received a response indicating that he “need[ed] to wait until [he] receive[d] a confirmation from
KCC for an interview at the U.S. Consulate Vienna.” Id. at 17.
On May 19, 2022, the Consulate contacted Plaintiff indicating he had been scheduled for
an interview on July 8, 2022. Id. at 14. The Consulate later postponed his interview to July 26,
2022. Id. at 13. On July 26, 2022, Plaintiff “executed his visa application and was interviewed by
a consular officer at the U.S. Embassy in Vienna, Austria.” Defs.’ Opp’n & Mot. to Dismiss Ex.
A, Declaration of Stephanie Woodard (“Woodard Decl.”) ¶ 4, ECF No. 9-3. Following his
interview, a consular “refused” Plaintiff’s visa application under § 221(g) of the INA. Id.; see also
Pl.’s TRO/PI Mot. Ex. B, at 18. The notice of refusal indicates that Plaintiff’s case “requires
further processing,” and that to “reopen [the] case,” Plaintiff must submit “written response to
supplemental questions that will be sent to you via email.” Pl.’s TRO/PI Mot. Ex. B, at 18.
Based on the email correspondence submitted by Plaintiff in support of his TRO/PI Motion,
the Consulate contacted Plaintiff by email on July 26, 2022, indicating that “to complete the DV
visa process, we require some additional information at this time.” Id. at 6. The email then
requests information pertaining to, among other items, Plaintiff’s travel and passport history, his
relatives, his address and contact information, his social media accounts, any military service, and
his past employment history/business endeavors. Id. at 6–7. Plaintiff was also directed to send
“the Iranian military exemption card or a copy of that stamp in your passport together with a
translation.” Id. at 7. Plaintiff promptly provided responses to these questions on July 27, 2022,
and attached four documents containing stamps in his passport and their translations. Id. at 8–11.
5
The Consulate confirmed receipt of these responses and materials within two hours, indicating that
“[w]e are now able to continue processing your DV visa application” and “will contact you again
once the administrative processing has been completed.” Id. at 11–12.
On July 29, 2022, the Consulate contacted Plaintiff by email, requesting additional
information,” including: a “CV/Resume, including list of publications and references,” a
“[d]etailed study/research plan and its practical application,” and “[s]ource of funding for research
or degree.” Id. at 3. Plaintiff responded to this request on August 1 and 2, 2022. Id. at 3–4. Again,
the Consulate confirmed receipt of the additional materials. Id. at 4, 5. In his TRO/PI Motion,
Plaintiff claims that his visa application has since remained in “administrative processing.” Pl.’s
TRO/PI Mot. at 6.
Plaintiff filed his Complaint in this action on August 29, 2022. In his Complaint, Plaintiff
alleges that Defendants have unlawfully withheld and unreasonably delayed the adjudication of
his visa petition under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure
Act (“APA”), 5 U.S.C. § 555(b). Compl. ¶¶ 17–26, 27–32. He seeks an order compelling
Defendants to “process Plaintiff’s visa application within (15) days.” Id. ¶ 33(b).
On September 2, 2022, Plaintiff filed his emergency TRO/PI Motion, seeking an order
compelling Defendants to complete adjudication of his diversity petition. Plaintiff contends that
if Defendants fail to complete adjudication of his visa petition by the September 30 deadline, he
will “suffer significant hardship.” Pl.’s TRO/PI Mot. at 6.
The Court set a briefing schedule on Plaintiff’s TRO/PI Motion during a teleconference
with the parties on September 7, 2022. See Minute Order (Sept. 7, 2022). On September 8, 2022,
Defendants filed their consolidated opposition and motion to dismiss Plaintiff’s Complaint.
Plaintiff filed a reply in support of his TRO/PI Motion on September 12, 2022.
6
II. LEGAL STANDARD
A temporary restraining order “is an extraordinary remedy that should be granted only
when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Postal
Police Officers Ass’n v. United States Postal Serv., 502 F. Supp. 3d 411, 418 (D.D.C. 2020)
(quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)). An application for a TRO is
analyzed using the same factors applicable to a request for preliminary injunctive relief. See, e.g.,
Gordon v. Holder, 632 F.3d 722, 723–24 (D.C. Cir. 2011) (applying preliminary injunction
standard to district court decision denying motion for TRO and preliminary injunction); Sibley v.
Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on preliminary
injunction case law).
Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[A] preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” (internal quotation marks omitted)). A plaintiff
seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the
balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v.
Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (internal
quotation marks omitted)). When seeking such relief, “the movant has the burden to show that all
four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193,
197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.
7
Cir. 2009)) (internal quotation marks omitted). “The four factors have typically been evaluated on
a ‘sliding scale.’” Davis, 571 F.3d at 1291. Under this sliding-scale framework, “[i]f the movant
makes an unusually strong showing on one of the factors, then it does not necessarily have to make
as strong a showing on another factor.” Id. at 1291–92.
It is unclear whether the United States Court of Appeals for the District of Columbia
Circuit’s (“D.C. Circuit”) sliding-scale approach to assessing the four preliminary injunction
factors survives the Supreme Court’s decision in Winter. See Save Jobs USA v. U.S. Dep't of
Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit have
“read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-
standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at 393 (quoting Davis,
571 F.3d at 1296 (Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold
definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA,
105 F. Supp. 3d at 112. In light of this ambiguity, the Court shall consider each of the preliminary
injunction factors and shall only evaluate the proper weight to accord the likelihood of success if
the Court finds that its relative weight would affect the outcome.
III. DISCUSSION
For the reasons set forth below, the Court concludes that Plaintiff has not carried his burden
of demonstrating a likelihood of success on the merits, a certainty of irreparable harm, or that the
balance of the equities and the public interest tilt in his favor. Accordingly, the Court DENIES
Plaintiff’s emergency motion for a temporary restraining order and preliminary injunction.
A. Likelihood of Success on the Merits
First, in order to receive a TRO, the moving “party must show, among other things, ‘a
substantial likelihood of success on the merits.’” Food & Water Watch, Inc. v. Vilsack, 808 F.3d
8
905, 913 (D.C. Cir. 2015) (quoting Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir.
2009)). The D.C. Circuit has identified a “likelihood of success on the merits” as the “most
important factor” for courts to consider when contemplating a motion for preliminary injunctive
relief. Aamer, 742 F.3d at 1038.
Plaintiff argues that Defendants have unreasonably delayed and unlawfully withheld
adjudication of his visa application, in violation of section 706(1) of the APA and the Mandamus
Act. See Pl.’s TRO Mot. at 6, For the reasons set forth below, the Court concludes that Plaintiff
has failed to carry his burden of demonstrating a substantial likelihood of success on the merits of
his claims.
1. Unlawfully Withheld
The Court first addresses Plaintiff’s passing reference to a claim that Defendants have
“improperly withheld action” on his diversity visa. Pl.’s TRO/PI Mot. at 6. The APA authorizes
courts to “compel agency action unlawfully withheld[.]” Id. § 706(1). Section 706(1) “empowers
a court to compel an agency to perform a ministerial or non-discretionary act, or to take action
upon a matter, without directing how it shall act.” Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 62 (2004) (internal citations and quotation marks omitted). Similarly, mandamus relief cannot
be used to “compel or control a duty in the discharge of which by law [a federal officer] is given
discretion” and is only appropriate where the defendant official owes the petitioner a clear and
nondiscretionary duty. Work v. United States ex rel. Rives, 267 U.S. 175, 177–78 (1925); see also
Heckler v. Ringer, 466 U.S. 602, 616 (1984).
Although Plaintiff’s TRO Motion identifies no source of any “non-discretionary” duty, in
his Reply, he cites 8 U.S.C. § 1202(b) for the proposition that the government has a “non-
discretionary” duty to adjudicate his diversity visa application. Section 1202(b) provides, in
relevant part: “All immigrant visa applications shall be reviewed and adjudicated by a consular
9
officer.” But Plaintiff cites no authority supporting his contention that Defendants have a non-
discretionary, mandatory duty to complete its review of his particular visa application by the fiscal
deadline. See, e.g., Pushkar v. Blinken, Civ. Action No. 21-2297 (CKK), 2021 WL 4318116, at
*10 (D.D.C. Sept. 23, 2021). In Pushkar, the Court addressed the decision by another court in this
jurisdiction that held that § 1202(b) “imposes a nondiscretionary duty on Defendants to adjudicate
diversity visas[.]” 2021 WL 4318116, at *10 (citing Filazapovich, 2021 WL 4127726, at *17).
But, in that case, the plaintiffs challenged not only the government’s failure to adjudicate their
individual visa petitions, but also general policies that halted all diversity processing at the
beginning of FY2021. As with the plaintiff in Pushkar, Plaintiff here makes no such challenge.
Moreover, Plaintiff’s claim is less persuasive than those in Pushkar and other cases from
this jurisdiction in which the DV applicant had not been scheduled for an interview before a
consular officer. Plaintiff attended an interview with a consular officer, who determined that he
was ineligible based on the applications materials before him. See Pl.’s TRO/PI Mot. Ex. B, at 18.
Plaintiff has not carried his burden of demonstrating a substantial likelihood of success on
the merits of his claim that Defendants have unlawfully withheld action on his diversity visa
petition under the APA.
2. Unreasonably Delayed
The bulk of Plaintiff’s TRO Motion focuses on his claim that Defendants have
unreasonably delayed processing his visa application. Pl.’s TRO/PI Mot. at 6–7. The APA
requires that agencies “within a reasonable time . . . shall proceed to conclude a matter presented
to it.” 5 U.S.C. § 555(b). If agencies fail to do so, courts may “compel agency action . .
.unreasonably delayed.” Id. § 706(1). To determine whether Plaintiff is likely to succeed on his
claim that Defendants’ adjudication of his diversity visa application is “unreasonably delayed,”
10
the Court applies the six factors laid out by the D.C. Circuit in Telecomms. Research & Action Ctr.
v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984):
(1) the time agencies take to make decisions must be governed by a rule
of reason;
(2) where Congress has provided a timetable or other indication of the
speed with which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for this rule of
reason;
(3) delays that might be reasonable in the sphere of economic regulation
are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on
agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the
interests prejudiced by delay; and
(6) the court need not find any impropriety lurking behind agency
lassitude in order to hold that agency action is unreasonably delayed.
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC,
750 F.2d at 80) (internal quotation marks omitted); see also Skalka v. Kelly, 246 F. Supp. 3d 147,
152 (D.D.C. 2017) (applying TRAC factors to claim for mandamus relief). Whether a delay is
unreasonable “cannot be decided in the abstract, by reference to some number of months or years
beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon
the complexity of the task at hand, the significance (and permanence) of the outcome, and the
resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d
1094, 1102 (D.C. Cir. 2003).
a. TRAC Factor 4
The D.C. Circuit has emphasized the “importance of competing priorities in assessing the
reasonableness of an administrative delay.” Id. at 1100 (internal quotation marks omitted). It
therefore has refused to grant relief—even where all other TRAC factors favored relief— where “a
11
judicial order putting [the petitioner] at the head of the queue [would] simply move[ ] all others
back one space and produce[ ] no net gain.” In re Barr Laboratories, Inc., 930 F.2d 72, 75 (D.C.
Cir. 1991); see also Xiaobing Liu v. Blinken, --- F. Supp. 3d ---, 2021 WL 2514692, at *7 (D.D.C.
June 18, 2021) (“This factor not only favors Defendants, but ends up altogether dooming Plaintiffs’
claims of unreasonable delay.”); Verma v. USCIS, Civil Action No. 20-3419 (RDM), 2020 WL
7495286, at *9 (D.D.C. Dec. 18, 2020) (“To grant Plaintiff priority would push those individuals
further back in line when the only difference between them is that plaintiff has brought a federal
lawsuit.” (internal quotation marks and citations omitted)). Courts in this jurisdiction routinely
decline to grant relief that would place one prospective visa applicant ahead of others. See, e.g.,
Xiaobing Liu, 2021 WL 2514692, at *7; Desai v. USCIS, No. 20-cv-1005 (CKK), 2021 WL
1110737, at *7 (D.D.C. Mar. 22, 2021); Verma, 2020 WL 7495286, at *9.
Defendants contend that granting Plaintiff the relief he seeks in his TRO motion would
merely “move his visa case to the front immediately, displacing other noncitizens” awaiting
adjudication of their petitions. Defs.’ Opp’n & Mot. to Dismiss at 28. In other words, expediting
review of Plaintiff’s application would “merely direct government resources” from the
adjudication of other visa applications.” Ghadami v. Dep’t of Homeland Sec., No. 19-00397, 2020
WL 1308376, at *9 (D.D.C. Mar. 19, 2020). Any such order would plainly interfere with the
agency’s “unique—and authoritative—position to view its projects as a whole, estimate the
prospects for each, and allocate its resources in the optimal way.” In re Barr, 930 F.2d at 76.
Based on similar circumstances, this Court has concluded that this TRAC factor weighs “heavily”
in favor of Defendants. Pushkar, 2021 WL 4318116, ay *7.
Plaintiff attempts to distinguish the facts of his case from those in Pushkar. He first notes
that unlike the plaintiff in Pushkar, he has already completed an interview. Pl.’s Reply at 17. He
12
contends that this demonstrates that he “has satisfied all of the prerequisites of the visa application,
as well as the interview.” Id. at 16. But the consular officer concluded that additional information
was required to issue a diversity visa. See Pl.’s TRO/PI Mot. Ex. B, at 18. As such, Plaintiff’s
claim that (in his own opinion) he “has satisfied” the prerequisites to obtain a diversity visa is
misplaced.
Next, Plaintiff contends that granting the injunctive relief he seeks would “not put him at
the ‘head of the queue’” but will instead “place him back on track where his case originally
belonged.” Pl.’s Reply at 17. This argument is based on his claim that he has “been taken out of
the queue for some unexplained reason.” Id. at 16. But, based on the record, it appears that
Plaintiff’s diversity visa was “refused” based on the conclusion that additional information was
required. He does appears to have submitted the requested information, but it is not clear to the
Court how granting Plaintiff the emergency injunctive relief he seeks would do anything other
than direct the agency to reallocate its resources to reviewing his application and his supplemental
documents—and away from those of other visa applicants.
As this factor weighs heavily in favor of Defendants, Plaintiff is not likely to show
likelihood of success on the merits as to the fourth TRAC factor.
b. TRAC Factors 1 and 2
The first and second TRAC factors require the Court to consider whether a “rule of reason”
governs the time agencies take to make decisions and whether a “statutory timeline” supplies
content for the “rule of reason” inquiry. TRAC, 750 F.2d at 80. Courts “typically consider [the
13
first and second factors] together.” Milligan v. Pompeo, 502 F. Supp. 3d 302, 317–18 (D.D.C.
2020).
Plaintiff has not demonstrated a substantial likelihood that the first factor weighs in his
favor. “Whether the State Department has a ‘rule of reason’ ‘cannot be decided in the abstract, by
reference to some number of months or years beyond which agency inaction is presumed to be
unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance
(and permanence) of the outcome, and the resources available to the agency.’” Id. (quoting
Mashpee, 336 F.3d at 1102). Plaintiff presents no argument in his TRO/PI Motion that
Defendants’ timing in processing his diversity visa is not guided by a “rule of reason.” Rather,
based upon the record before the Court at this early procedural juncture, Plaintiff’s visa number
did not become “current” until the late spring of 2022—at which point he became eligible for an
interview. Defendants have explained that the order in which diversity visa petitions are
adjudicated turns on, among other things, the priority number of the particular applicant, whether
he was “documentarily qualified,” and the conditions at the consulate where the selectee’s
application would be processed. See Miles Decl. ¶¶ 9, 10; see also Gjoci, 2021 WL 3912143, at
*13. Plaintiff has provided no contrary arguments or facts to suggest that Defendants’ alleged
“delay” in processing his visa application is contrary to a rule a reason.
Other courts in this jurisdiction have concluded that the INA “provides a clear indication
of the speed with which it expects the agency to proceed in processing diversity lottery selectees’
visa applications, which supplies content for the TRAC rule of reason.” Gomez I, 485 F. Supp. 3d
at 196 (internal quotation marks and citations omitted); see also Filazapovich, 2021 WL 4127726,
at *18. The court in Gomez I reasoned that § 1154 “sets an absolute, unyielding deadline by which
selectees must receive their visas: ‘Aliens who qualify, through random selection, for a visa under
14
section 1153(c) of this title shall remain eligible to receive such visa only through the end of the
specific fiscal year for which they were selected.’” 485 F. Supp. 3d at 196 (quoting 8 U.S.C. §
1154(a)(1)(I)(ii)(II)). As in Gomez I, Defendants here argue that this provision does not expressly
require the State Department to conclude processing diversity visas by that date; it speaks only to
the time period during which selectees are eligible to obtain a visa (upon completion of all
necessary prerequisites). See Defs.’ Opp’n at 24–26; Gomez I, 485 F. Supp. 3d at 196. But the
court in Gomez I pointed out that the TRAC factor 2 inquiry may be satisfied not only by “an
express timetable,” but instead by “any other indication [ ] of speed.” Gomez I, 485 F. Supp. 3d
at 196 (citing TRAC, 750 F.2d at 80). The Gomez I court concluded that “‘[t]he specificity and
relative 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.” Id. (quoting In re People’s Mojahedin Org. of Iran, 680 F.3d 832, 837 (D.C.
Cir. 2012)).
Although the September 30 deadline to issue diversity visas suggests the “speed” at which
Congress intended these visas to be processed, the INA does not impose any obligation on
Defendants to process all diversity visas by the end of the fiscal year. See 8
U.S.C. § 1154(a)(1)(I)(ii)(II) (“[A]liens who qualify, through random selection, for a visa shall
remain eligible to receive such visa only through the end of the specific fiscal year for which they
were selected.”); see Gomez I, 485 F. Supp. 3d at 196 (observing that there is “no statutory
requirement that every available diversity visa be issued each year”).
Plaintiff’s arguments to the contrary are unpersuasive; he contends that it runs “contrary to
reason” for the “Government to offer lottery visa opportunities to individuals and families . . . if it
were incapable of processing these visa applications before the statutory deadline.” Pl.’s Reply at
15
19. The Court disagrees. Instead, the Court finds reasonable and practical Defendants’
explanation that it seeks more applications than the number of available diversity visas to ensure
that as many of the annually allocated diversity visas are assigned to eligible applicants. See Miles
Decl. ¶ 4.
In sum, Plaintiff has not demonstrated that he is likely to succeed on the merits of his
unreasonable delay claim as to the first TRAC factor. The second TRAC factor is a closer call;
Congress has conveyed its intent that a certain number of diversity visa applications be processed
by the end of the fiscal year. However, there is plainly no statutory obligation requiring all visa
applications to be processed, much less Plaintiff’s particular petition. The Court finds that, at most,
the second TRAC factor is evenly balanced between the two parties.
c. TRAC Factors 3 and 5
The third and fifth factors are often considered together, and require the Court to consider
the “nature and extent of interests prejudiced by delay” and whether “human health and welfare
are at stake.” TRAC, 750 F.3d at 80.
Plaintiff may succeed on the merits of the fifth TRAC factor—that he will be prejudiced by
the failure to obtain a visa by September 30. If Defendants fail to process his visa by September
30 (that date has not yet passed), he will lose his opportunity to immigrate to the United States
through this fiscal year’s diversity visa program. Plaintiff has not demonstrated, however, that the
third TRAC factor weighs in his favor. He indicates that he has suffered “financial hardship”
associated with the application process, and would be “deprived of educational, career, and
personal opportunities that [he] can only find in the United States.” Pl.’s TRO/PI Mot. at 9.
Although the Court is sympathetic to these concerns, it must also be mindful that “‘many others’
face similarly difficult circumstances as they await adjudication of their visa applications.”
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Mohammed v. Blinken, 20-cv-3696 (TNM), 2021 WL 2866058, at *6 (D.D.C. July 8, 2021). As
noted above, an order compelling Defendants to process Plaintiff’s visa application would merely
move Plaintiff’s application ahead of other visa petitioners to the front of the queue—to the
detriment of other visa applicants who may be facing similar (or even more dire) circumstances.
Although Plaintiff has demonstrated that he may be prejudiced by Defendants’ failure
complete the processing of his visa application by the September 30 deadline, the Court is not
persuaded that he has demonstrated that he is likely to succeed on the merits with respect to the
consideration of “human health and welfare”—because it is not just his “health and welfare” that
the Court must consider, but also that of others similarly-situated.
d. TRAC Factor 6
The sixth TRAC factor notes that the “Court need not find any impropriety lurking behind
agency lassitude in order to hold the agency action is unreasonably delayed.” Ghadami, 2020 WL
1308376, at *9. Plaintiff here makes no argument of any agency “impropriety.” Accordingly, the
Court makes no finding with respect to the sixth TRAC factor.
***
In sum, Plaintiff has not demonstrated a likelihood of success on the merits of his
unreasonable delay claim. Although Plaintiff may succeed in showing that Congress has indicated
the “speed” by which it intended a specified number of diversity visas to be processed and that he
will be prejudiced if he fails to receive a visa by September 30, 2022, he has failed to carry his
burden of demonstrating a substantial likelihood of success as to the remaining factors. Most
notably, the TRO/PI he seeks would interfere with Defendants’ allocation of resources and ability
to assess competing priorities (including the processing of thousands of visa applications) by
moving his particular application to the front of the line. It would also affect other visa applicants,
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by potentially moving back their position in the queue. Plaintiff has not demonstrated a likelihood
of success that the TRAC factors favor him, warranting relief under the APA or the Mandamus
Act.
****
For the reason set forth above, based upon the present record at this preliminary stage of
litigation, Plaintiff has not demonstrated that he is likely to succeed on the merits of his APA or
Mandamus Act claims challenging Defendants’ alleged unreasonably delayed and unlawfully
withheld adjudication of his diversity visa petition.
B. Irreparable Harm
The Court next considers whether Plaintiff has demonstrated “irreparable harm.” CityFed
Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). To constitute
“irreparable harm,” the injury alleged must be “both certain and great, actual and not theoretical,
beyond remediation, and of such imminence that there is a clear and present need for equitable
relief.” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quotation
omitted). And “[p]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is
likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)
(emphasis in original) (internal citations omitted). “[P]ossibility of irreparable harm” is not
enough. Id. “[P]roving ‘irreparable’ injury is a considerable burden, requiring proof that the
movant’s injury is ‘certain, great and actual—not theoretical—and imminent, creating a clear and
present need for extraordinary equitable relief to prevent harm.’” Power Mobility Coal. v. Leavitt,
404 F. Supp. 2d 190, 204 (D.D.C. 2005) (internal citation omitted).
Here, Plaintiff argues that if his visa is not issued by September 30, 2022, he will lose his
opportunity to obtain a diversity visa. Pl.’s TRO Mot. at 10. However, compelling Defendants to
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complete its processing of his supplemented diversity visa application would not necessarily result
in his receipt of a visa; his visa application could potentially be denied. See Almaqrami, 933 F.3d
at 777 (“[I]f he meets the criteria to obtain one, the State Department shall issue him a diversity
visa.”). Here, a consular officer has already denied Plaintiff’s visa application, concluding that
additional information was required before he could be deemed eligible for a diversity visa. See
Pl.’s TRO/PI Mot. Ex. B, at 18. Plaintiff cannot unilaterally assess his own eligibility for a visa;
that is within the purview of a consular officer.
Plaintiff’s TRO/PI Motion relies on the flawed premise that, by being selected in the
diversity visa lottery and submitting the required documents, he is guaranteed a visa. Not so. He
was instead guaranteed the opportunity to apply for one of approximately 55,000 available visas—
as were the other 63,752 selectees (and their beneficiaries). “Because an injunction will not redress
[his] alleged injuries, [plaintiff's] claim that [he] will suffer irreparable harm in the absence of a
preliminary injunction is tenuous at best.” Sierra Club v. Dep’t of Energy, 825 F. Supp. 2d 142,
153 (D.D.C. 2011) (quoting Navistar, Inc. v. EPA, 2011 WL 3743732, at *3 (D.D.C. Aug. 25,
2011)). Accordingly, the Court finds that Plaintiff has not carried his burden of establishing certain
irreparable harm, absent the specific injunctive relief he seeks from this Court.
C. Balance of Harms and Public Interest
“The final two factors the Court must consider when deciding whether to grant a
[temporary restraining order] are the balance of harms and the public interest.” Sierra Club v. U.S.
Army Corps of Engineers, 990 F. Supp. 2d 9, 41 (D.D.C. 2013). Where, as here, the government
is a party to the litigation, these two factors merge and are “one and the same, because the
government’s interest is the public interest.” Pursuing Am.’s Greatness v. Fed. Election Comm’n,
831 F.3d 500, 511 (D.C. Cir. 2016). “Although allowing challenged conduct to persist certainly
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may be harmful to a plaintiff and the public, harm can also flow from enjoining an activity, and
the public may benefit most from permitting it to continue.” Sierra Club, 990 F. Supp. 2d at 41.
Therefore, when “balanc[ing] the competing claims of injury,” the Court must “consider the effect
on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24.
As to the balance of harms, Plaintiff argues only that compelling Defendants to complete
its processing of Plaintiff’s application would not “harm” consular staff because they are
“processing visas and holding interviews.” Pl.’s TRO/PI Mot. at 10. And, as to the public interest,
Plaintiff only briefly addresses the “public interest” underlying the diversity visa program at large.
Id. at 11. Neither of these arguments is sufficient to tilt either factor in Plaintiff’s favor. Plaintiff
has not argued that there is any “public interest” in expediting processing of his visa application,
as opposed to any other diversity visa application or any other immigrant visa applications.
Although the Court recognizes that Plaintiff may lose his opportunity to immigrate to the United
States based on his selection in the 2022 fiscal year lottery if the processing of his diversity visa is
not completed, it is not persuaded that this tips the balance of harms and the public interest in his
favor. Granting Plaintiff’s requested relief would require Defendants to re-order their processing
queue, potentially allowing Plaintiff to move ahead of other similar-situated visa applicants—who,
in turn, may lose their opportunity to obtain a visa. The Court reiterates that the number of
applicants eligible for a diversity visa for the 2022 fiscal far exceeds the number of available visas.
See Miles Decl. ¶ 4. As previously noted, being selected in the diversity visa lottery does not
guarantee applicants the right to obtain a visa.
Overall, the Court finds that Plaintiff has not demonstrated that the balance of the harms
and the public interest weigh in favor of his requested TRO.
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IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court concludes that Plaintiff
has failed to satisfy his burden of demonstrating a likelihood of success on the merits, a certainty
of irreparable harm, or that the balance of hardships and the public interest weigh in his favor.
Accordingly, the Court will DENY Plaintiff’s [6] Emergency Motion for a Temporary Restraining
Order and Preliminary Injunction. The Court further HOLDS IN ABEYANCE Defendants’ [9]
Motion to Dismiss. The parties are directed to file a Joint Status Report on SEPTEMBER 30,
2022, as set forth in the Order accompanying this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
Date: September 22, 2022
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