Zeynali v. Blinken ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REZA ZEYNALI,
Plaintiff,
Civil Action No. 22-cv-2683 (BAH)
v.
Chief Judge Beryl A. Howell
ANTONY BLINKEN, Sec’y, U.S. Dep’t of
State, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
In May 2021, plaintiff Reza Zeynali, an Iranian national, was selected for the State
Department’s diversity visa (“DV”) program for Fiscal Year 2022. Compl. ¶¶ 16–17, ECF 1.
This program makes up to 55,000 visas available annually, via random selection in a lottery, to
citizens from countries with low rates of immigration to the United States, and who, if randomly
selected, are eligible to apply each year for those diversity visas, see 8 U.S.C. §§ 1151(e),
1153(c); 22 C.F.R. § 42.33. 1 Since being selected, plaintiff has prepared and submitted his
initial required forms, but has yet to be scheduled for an interview and adjudication of his visa
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The lottery selectees submit their initial paperwork to the Department of State’s Kentucky Consular Center,
which reviews it for completion and then schedules documentarily qualified selectees for interviews at their local
consular posts. Defs.’ Mot. to Dismiss, Ex. D, Decl. of Morgan Miles (“Miles Decl.”) ¶¶ 1–2, 6–7, 9–10, ECF No.
9-6. Whether or not an interview appointment can be scheduled depends on several factors, including whether the
selectee has properly submitted his or her complete paperwork, whether the Kentucky Consular Center has finished
processing that selectee’s paperwork, whether the local consular post has an appointment available, and whether the
selectee’s randomly assigned regional rank order number is next in the queue. See id. ¶¶ 9–10. Thus, even a
selectee who promptly submitted his or her initial paperwork may not yet be eligible for an interview if, for
example, the local consular post is working through a backlog of processing higher-priority visa applications and has
no current appointments available, or the selectee’s regional rank order number is much higher than others in the
region.
If and when a selectee has an interview at the local consular post, it is at that interview that the selectee
formally makes his or her DV application. See 22 C.F.R. § 40.1(l)(2) (defining the making of an immigrant visa
application as “personally appearing before the consular officer” and proceeding through the interview, with the
required documentary evidence and forms submitted in advance). The consular officer then adjudicates the
application and either issues or refuses the visa. See 8 U.S.C. § 1202(b); 22 C.F.R. § 42.81(a)
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application at his local consular post. Compl. ¶¶ 18–19. With the fiscal year drawing to a close
on September 30, 2022, after which he will lose his status as a DV program selectee, see 8
U.S.C. § 1154(a)(1)(I)(ii)(II), plaintiff filed this lawsuit, on September 6, 2022, seeking that the
Court mandate the State Department to adjudicate his application prior to that deadline, see
Compl. at 8 (Prayer for Relief).
The Complaint asserts a single claim under the Administrative Procedure Act (“APA”), 5
U.S.C. § 701 et seq., alleging that defendants—Secretary of State Antony Blinken, Assistant
Secretary of State for Consular Affairs Rena Bitter, and Chargé d’Affaires of the United States
Embassy in Abu Dhabi Sean Murphy, all of whom have been sued in their official capacity—are
“unlawfully withholding action” on plaintiff’s DV application “for an unreasonable period of
time.” Compl. ¶¶ 8–10, 27–35. The same day he filed this lawsuit, plaintiff also moved for a
preliminary injunction, which is now ripe for the Court’s review. See Pl.’s Mot. for Preliminary
Injunction (“Pl.’s Mot.”), ECF No. 2. In opposition to the pending motion for injunctive relief,
defendants filed a motion to dismiss on various grounds, Defs.’ Mot. to Dismiss, ECF No. 9,
which motion remains pending.
Plaintiff requests “an emergency injunction and writ of mandamus,” presumably
requiring the State Department to schedule his visa interview and adjudicate his application
before September 30, arguing that “[b]y statute, [he] is required to receive his visa before the
expiration of the current fiscal year.” Pl.’s Mem. Supp. Mot. Preliminary Injunction (“Pl.’s
Mem.”) at 6–7, ECF No. 2-1. 2 No statutory requirement mandates that the State Department
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Plaintiff did not file a proposed order with his Motion for Preliminary Injunction, as required by D.D.C.
LCVR 7(c), and his accompanying Memorandum was likewise unclear, so the Court is left to guess at the exact form
of relief requested. His failure to establish a likelihood of success on the merits of his claim means, however, that
no preliminary injunction will issue and thus any ambiguity as to the form of injunctive relief sought is
inconsequential.
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carry out a non-discretionary duty of adjudicating plaintiff’s visa by the end of the fiscal year, so
plaintiff fails to establish a likelihood of success on the merits of his APA claim. Accordingly,
plaintiff’s motion for a preliminary injunction is denied.
I. LEGAL STANDARD
A preliminary injunction “is an extraordinary . . . remedy, one that should not be granted
unless the movant, by a clear showing, carries the burden of persuasion” on each of four factors.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted) (quoting 11A
C. WRIGHT, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2948, at 129–30 (2d
ed. 1995)). To obtain relief, moving parties must establish that (1) they are “likely to succeed on
the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”;
(3) “the balance of equities” is in their “favor”; and (4) “an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also Benisek v. Lamone, 138 S. Ct.
1942, 1943–44 (2018); League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir.
2016); Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016). The first factor is
“[a] foundational requirement for obtaining preliminary injunctive relief.” Guedes v. Bur. of
Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019); see also Aamer v.
Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (highlighting first factor as the “most important
factor”); Munaf v. Geren, 553 U.S. 674, 690 (2008) (“[A] party seeking a preliminary injunction
must demonstrate, among other things, ‘a likelihood of success on the merits.’” (quoting
Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006))). 3
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The D.C. Circuit has previously followed a “sliding scale” approach to evaluating preliminary injunctions,
but that approach is likely inconsistent with Winter, see Archdiocese of Wash. v. Wash. Metro. Area. Transit Auth.,
897 F.3d 314, 334 (D.C. Cir. 2018) (observing that Winter may be “properly read to suggest a ‘sliding scale’
approach to weighing the four factors be abandoned”); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295–
96 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (noting that “this Circuit's traditional sliding-scale approach to
preliminary injunctions may be difficult to square with the Supreme Court’s recent decisions in” Winter and Munaf),
and therefore will not be employed here, see Singh v. Carter, 185 F. Supp. 3d 11, 16–17 (D.D.C. 2016).
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II. DISCUSSION
Plaintiff’s sole claim is that the government has “unlawfully with[eld] action on [his DV
application] for an unreasonable period of time,” in what amounts to an “unreasonabl[e] delay[]”
in violation of the APA. Compl. ¶¶ 34–35. The APA authorizes courts to “compel agency
action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), but that authority only
extends to compelling agency action that is ministerial and non-discretionary. As the Supreme
Court has made clear, “a claim under § 706(1) can proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original). Thus, one component of
either an unlawful withholding or an unreasonable delay claim under the APA, is a showing that
the agency had a non-discretionary duty to take a discrete action. 4
Plaintiff has no likelihood of success of establishing this threshold requirement, for he
fails to identify any source for “a specific, unequivocal command” that the State Department
must schedule his particular interview and therefore allow his visa application to be processed
before the end of the fiscal year. Id. (internal quotation omitted). Pointing to 8 U.S.C.
§ 1154(a)(1)(I)(ii)(II), plaintiff asserts that this section means that “as a winner of the diversity
visa lottery, he must receive his visa by the end of the current fiscal year.” Compl. ¶ 28; see also
Pl.’s Mem. at 10 (arguing that after he “was randomly selected as a diversity lottery winner” and
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Although not clearly labelled as such in the Complaint, plaintiff’s claim is best characterized as an
“unreasonable delay” claim under the APA, see Compl. ¶¶ 29, 32, 34–35 (focusing on the amount of time that
defendants have allegedly withheld the adjudication of plaintiff’s DV application); Pl.’s Mem. at 11–15 (analyzing
the likelihood of success of the claim as one for unreasonable delay), which means that to succeed on the merits, he
would have to show not only that this nondiscretionary duty existed, but also that the agency unreasonably delayed
in acting on that duty. See Norton, 542 U.S. at 63–64. In assessing whether or not a given delay is unreasonable,
courts must undertake an assessment of the six guiding factors set out in Telecomm. Research & Action Ctr. v. FCC
(“TRAC”), 750 F.2d 70, 79–80 (D.C. Cir. 1984). Here, however, the TRAC factors need not be addressed because
plaintiff has not made the threshold showing that the State Department had a nondiscretionary duty to schedule his
interview and allow him to submit a DV application. See Norton, 542 U.S. at 63 n.1 (noting that “a delay cannot be
unreasonable with respect to action that is not required”).
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properly submitted his initial paperwork, defendants “ha[d] a clear duty to conclude this,” i.e.,
the visa application and adjudication process); Pl.’s Reply Supp. Mot. Preliminary Injunction
(“Pl.’s Reply”) at 27–28, ECF No. 11 (contending that under the requirements of that section, “as
a DV Lottery winner whose number is eligible for interview scheduling, he is entitled to be
scheduled for the said interview” before September 30, 2022).
Not so. That statutory section provides only that “Aliens who qualify, through random
selection, for a visa under [the DV program] shall remain eligible to receive such visa only
through the end of the specific fiscal year for which they were selected.” 8 U.S.C.
§ 1154(a)(1)(I)(ii)(II). In other words, the text of this section makes clear that eligibility for a
visa under the DV program is time-limited such that lottery selectees whose visa applications are
not adjudicated before the end of the fiscal year lose their eligibility, with the consequence that
they must reapply to the DV program through the lottery in following years and do not retain
their status as selectees. This section does not impose a duty on the State Department to
adjudicate the applications of every lottery selectee in the fiscal year in which they were selected
and ensure that consequence befalls no one.
In fact, the State Department likely would find the task of adjudicating all selectees in a
given year impossible to accomplish. Each year, the Department “looks at data and
conditions . . . to estimate how many selectees may be needed to reach the statutory limit of
55,000 visas,” with the result that some years—including 2022—the number of lottery selectees
exceeds the 55,000 cap. Defs.’ Mot. to Dismiss, Ex. D, Decl. of Morgan Miles (“Miles Decl.”)
¶ 3, ECF No. 9-6. Furthermore, because each selectee, if he or she does make a DV application,
may include a spouse and children as derivative applicants (whose visas, if issued, would also
count towards the 55,000 cap), the number of potential DV applicants every year is far higher
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than 55,000. Id. (showing that, in 2022, there are 118,513 total applicants in the DV program).
The Department has its reasons for operating the program this way: “[I]f the Department did not
over select DV participants, it would not be able to use the full allocation of DV numbers[,]”
because “[t]here are selectees who fail to demonstrate their eligibility to a consular officer, and
those who fail to submit a DS-260.” Id. ¶ 4. The upshot is that under the Department’s current
administration of the DV program, winning the lottery does not guarantee each selectee the
opportunity to have their applications adjudicated. Plaintiff has not identified a statutory source
to the contrary that would impose a specific, non-discretionary duty upon the Department to
ensure that all lottery selectees who properly submit their initial paperwork have their
applications adjudicated before the end of the fiscal year.
III. CONCLUSION AND ORDER
For the foregoing reasons, plaintiff has failed to demonstrate a likelihood of success on
the merits of his Administrative Procedure Act claim. Consequently, the Court need not
“proceed to review the other three preliminary injunction factors.” Guedes, 920 F.3d at 10
(quoting Arkansas Dairy Coop. Ass’n v. U.S. Dep’t of Agriculture, 573 F.3d 815, 832 (D.C. Cir.
2009)). It is therefore
ORDERED that plaintiff’s Motion for Preliminary Injunction, ECF No. 2, is DENIED.
SO ORDERED.
Date: September 26, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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