Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry , 168 F. Supp. 3d 268 ( 2016 )


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  •                                          UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    NINE IRAQI ALLIES UNDER
    SERIOUS THREAT BECAUSE OF
    THEIR FAITHFUL SERVICE TO
    THE UNITED STATES,
    Civil Action No. 15-300(GK)
    Plaintiffs,
    v.
    HON. JOHN F. KERRY, et al.
    Defendants,
    AMENDED MEMORANDUM OPINION
    CONTENTS
    I .          BACKGROUND • . • • . • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • . • • • • • . • • . • • • 4
    A.         The Special Inunigrant Visa Programs ........................... 4
    B.         Plaintiffs' Circumstances .................................... 10
    II .         STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
    I I I •      ANALYSIS . . . . . . . . . . . . . • . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 2 0
    A.         Plaintiffs' Motion for Leave to File Supplemental Declaration 20
    B.         Counts 3-6: Failure to Adjudicate Plaintiffs' Applications ... 22
    1.    Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    2.    The Doctrine of Consular Nonreviewability ...................... 28
    3.    Judicially Manageable Standards to Enforce a Non-discretionary
    Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
    4.    The APA and the Mandamus Act .................................... 59
    C.         Counts 1 & 2: Failure to Protect ............................. 61
    IV.          CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
    ...
    Plaintiffs in this case are Iraqi and Afghan citizens who
    incurred great risks to themselves and their families through their
    service to the United States during the military operations in
    Iraq and Afghanistan known as Operation Iraqi Freedom and Operation
    Enduring    Freedom.         In order   to   avoid ongoing threats        to   their
    personal safety, Plaintiffs hope to immigrate to the United States
    pursuant to Iraqi and Afghan Special Immigrant Visa programs that
    Congress authorized to provide refuge for Iraqis and Afghans who
    face or have faced serious threats because of their past faithful
    service to the United States. See Refugee Crisis in Iraq Act of
    2007   ("RCIA"),   
    8 U.S.C. § 1157
     note at§§ 1241-49; Afghan Allies
    Protection Act of 2009 ("AAPA"), 
    8 U.S.C. § 1101
     note at §§ 601-
    02. 1 Because of the ongoing risk of reprisal they face, Plaintiffs
    have been granted leave to proceed by pseudonym in this action. 2
    See Order Granting Motion to Proceed by Pseudonym [Dkt. No. 2].
    Plaintiffs contend that Defendants, Secretary of State John
    F. Kerry, the Department of State, Secretary of Homeland Security
    Jeh    Charles   Johnson,       and   the    Department   of   Homeland   Security
    (collectively,     "Defendants" or "the Government"), have failed to
    1 The RCIA and AAPA are codified as notes to 
    8 U.S.C. §§ 1157
     and
    1101, respectively. The Court cites to provisions of these acts
    with the relevant act's abbreviation and section number (e.g.,
    RCIA § 1241) throughout.
    2The relevant pseudonyms and factual distinctions in each of the
    Plaintiffs' situations are set forth below.
    -2-
    •.
    make reasonable efforts to protect Plaintiffs or remove them from
    Iraq   and    Afghanistan,     and   have    failed    to        finally     adjudicate
    Plaintiffs'      Special     Immigrant       Visa     applications           within     a
    reasonable period of time. Amended Compl.               ``       205-54.   Plaintiffs'
    Amended Complaint seeks an order compelling these actions pursuant
    to the Administrative Procedure Act             ("APA"),         
    5 U.S.C. § 706
    (1),
    and the Mandamus Act, 
    28 U.S.C. § 1361
    .
    On September 1,       2015,   the Government          filed its Motion to
    Dismiss for Lack of Jurisdiction and Failure to State a                             Claim
    ("Gov't's Mot.")     [Dkt. No. 36]. It contends that Plaintiffs lack
    standing to pursue their claims and have failed to state claims
    upon which relief can be granted because,                   among other reasons,
    Plaintiffs have received final refusals of their applications. On
    September 25,     2015,    Plaintiffs filed their Opposition 1Dkt. No.
    43], and on October 2, 2015, the Government filed its Reply [Dkt.
    No. 45].
    On October 23, 2015, Plaintiffs filed a Motion for Leave to
    File    a    Supplemental     Declaration      in     Support        of    Plaintiffs'
    Opposition to Defendants' Motion to Dismiss                      [Dkt. No.    48]   along
    with a copy of the Supplemental Declaration [Dkt. No.                         48-1].   On
    November 6, 2015, the Government filed its Response [Dkt. No. 49].
    On November 9, 2015, Plaintiffs filed their Reply [Dkt. No. 50].
    -3-
    ..... '                                ..   ····;   ..
    Upon consideration of                   the Government's Motion to Dismiss,
    Plaintiffs' Opposition, the Government's Reply, Plaintiffs' Motion
    for Leave,          the Government's Response,              Plaintiffs' Reply, and the
    entire record herein, and for the reasons stated below, Plaintiffs'
    Motion        for    Leave        to   File    a   Supplemental    Declaration shall                 be
    granted and the Government's Motion to Dismiss shall be granted
    with respect to Counts 1 & 2 and denied with respect to Counts 3-6
    (except insofar as those claims relate to Alpha, Bravo, and Delta) .
    I .     BACKGROUND
    A.      The Special Immigrant Visa Programs
    In recognition of the grave dangers faced by many Iraqis and
    Afghans who have assisted United States' military efforts in their
    countries, Congress established Iraqi and Afghan Special Immigrant
    Visa ("SIV") programs, enacting the Refugee Crisis in Iraq Act of
    2007,    RCIA       §§    1241-49,      and the Afghan Allies Protection Act of
    2009, AAPA          §§    601-02. Under the Iraqi SIV program, an SIV may be
    granted to an applicant who:
    (A) is a citizen or national of Iraq;
    (B) was or is employed by or on behalf of the United States
    Government in Iraq, on or after March 20, 2003, for not less
    than one year;
    (C)    provided faithful                and valuable      service              to   the   United
    States           Government,          which   is   documented                 in    a   positive
    -4-
    recommendation or evaluation . . . from the employee's senior
    supervisor or the person currently occupying that position,
    or a more senior person, if the employee's senior supervisor
    has left the employer or has left Iraq; and
    (D)    has experienced or is experiencing an ongoing serious
    threat as         a    consequence of         the alien's employment by the
    United States Government.
    RCIA    §    1244(b) (1). Spouses and children of individuals who meet
    the RCIA's requirements may also receive SIVs. RCIA                             §    1244(b) (2).
    The AAPA includes substantially similar provisions that of fer
    SIVs to citizens or nationals of Afghanistan employed by or on
    behalf        of    the        United     States       Government     (or           in     certain
    circumstances,           the    International         Security Assistance                Force)   in
    Afghanistan,         on or after October 7,              2001 for not less than one
    year, as well as their spouses and children. AAPA                           §       602(b) (2) (A)
    &   (B) .
    In both the RCIA and the AAPA, Congress instructed Defendants
    to "improve the efficiency by which applications for [SIVs] under
    [the        Iraqi   and       Afghan    SIV     programs]    are    processed [.] "           AAPA
    §   602(b) (4) (A); RCIA         §    1242(c) (1). Congress emphasized this point
    with the directive that SIV applications shall be "processed so
    that all steps under the control of the respective departments
    incidental          to    the        issuance    of     [SIVs] ,    including             required
    -5-
    .... '·
    .   .   ....                                           ··:·   .
    screenings and background checks,                              should be completed not later
    than 9 months after the date on which an eligible alien submits
    all required materials to complete an application for such visa."
    RCIA    §   1242 (c) (1);                AAPA     §    602 (b) (4) (A)         (repeating             identical
    language) . Mindful that particular cases might present national
    security risks not present in the average SIV application, Congress
    added that "[n]othing in [the] section [quoted immediately above]
    shall be construed to limit the ability of [the Secretary of State
    or Secretary of Homeland Security] to take longer than 9 months to
    complete those steps incidental to the issuance of such visas in
    high-risk     cases             for       which       satisfaction         of              national       security
    concerns    requires              additional           time.'~      RCIA   §              1242 (c) (2);    AAPA   §
    602 (b) (4) (B)    (same).
    Both statutes also provide that "[t]he Secretary of State, in
    consultation with the heads of other relevant Federal agencies,
    shall make a reasonable effort to provide an alien described in
    this section who is applying for a                               special immigrant visa with
    protection or the immediate removal from [Iraq or Afghanistan] , if
    possible,     of       such             alien     if     the     Secretary                  determines       after
    consultation       that                such   alien     is     in    imminent                danger."      RCIA   §
    1244(e); AAPA      §   602(b) (6)               (providing same treatment for protection
    -6-
    or   removal      of     applicants       from    Afghanistan     with   only    slight
    differences in phrasing)         .3
    The RCIA and AAPA require Defendants to issue reports                        to
    Congress regarding the number and status of SIV applications and
    improvements to the process for considering SIV applications. See
    RCIA    §   1248 (a),    (f); APAA    §   (b) (11). Many of these Joint Reports
    from the Departments of State and Homeland Security (referred to
    throughout as           "Joint Reports") ,        which Plaintiffs summarized in
    their       Amended     Complaint     and    submitted      as   exhibits   to    their
    Opposition, provide insight into the process by which Defendants
    review Iraqi and Afghan SIV applications. See Amended Compl.                         ``
    44-50; Pls.' Exs. L-W [Dkt. Nos. 43-4 through 43-15].
    As each of the Joint Reports states,                 "SIV applications move
    through 14 steps, in the following four stages: Chief of Mission
    ( "C.OM")     Application      Process;          Form   I-360    Adjudication;     Visa
    Interview; and Visa Issuance." E.g.,                    Pls.' Ex. Lat 2. Chief of
    Mission Approval          (which is granted on the basis of the Chief of
    Mission Application and is referred to by the Parties as                           "COM
    3 "The Secretary of State, in consultation with the heads of other
    appropriate Federal agencies, shall make a reasonable effort to
    provide an alien described in subparagraph (A), (B), or (C) of
    paragraph (2} who is seeking special immigrant status. under this
    subsection protection or to immediately remove such alien from
    Afghanistan, if possible, if the Secretary determines, after
    consultation, that such alien is in imminent danger." AAPA
    § 602 (b) (6).
    -7-
    Approval")         is required by the APAA and RCIA. RCIA                    §   1244 (b) (4);
    AAPA   §    602(b) (2) (D). Both statutes state that the relevant Chief
    of Mission in Iraq or Afghanistan must "conduct a risk assessment
    of the alien and an independent review of records maintained by
    the United States Government or hiring organization or entity to
    confirm employment and faithful and valuable service to the United
    States      Government         prior   to    approval        of   a   petition under     this
    section." RCIA           §   1244 (b) (4) (A); AAPA      §   602 (b) (2) (D) (i).
    Once an applicant has received COM Approval, he or she must
    enter the second stage of the process by submitting a completed
    Form       I-360    to       the   Department       of       Homeland    Security's      U.S.
    Citizenship and Immigration Services ("USCIS").                          ~,      Pls.' Ex. R
    at 3. If USCIS approves the petition, it is sent to the Department
    of State's National Visa Center ("NVC"), and the applicant begins
    the Visa Interview Process stage. Id.
    The Visa Interview Process stage includes six steps of the 14
    steps that make up the SIV application process -- more than any of
    the three other stages.                Id.   In this         stage,    the applicant must
    submit certain documents to the NVC and schedule an interview at
    the appropriate U.S. Embassy. Id.
    The Joint Reports uniformly describe the last two steps in
    the Visa Interview Process stage (which are steps 12 and 13 of the
    full 14-step application process) as follows:
    -8-
    .   .   .~.
    :'   ..
    12.     Applicant is interviewed by consular officer on the
    scheduled    appointment    date.    Administrative
    processing is initiated following the interview.
    13.     The applicant's                   case    undergoes     administrative
    processing.
    E.g., Pls.' Ex. oat 3. 4
    "Upon    completion                of   administrative       processing,"     the
    applicant enters the fourth and final stage: Visa Issuance.
    Id.   This last stage has just one step in which a "visa is
    issued if [the] applicant is eligible." Id. However, the Joint
    Reports     note   that             by   this   point,    "[i] n    some   cases,   the
    passport or medical exam will have expired and require renewal
    by the applicant." Id.
    4 Although the Joint Reports describe "administrative processing"
    as a necessary step in the SIV application process that must follow
    the consular interview and precede visa issuance, see~, Pls.'
    Ex. 0 at 3, State Department regulations require consular officers
    to "either issue or refuse" any visa immediately "[w] hen a visa
    application has been properly completed and executed before a
    consular officer in accordance with the provisions of [the
    Immigration and Naturalization Act] and [that Act's] implementing
    regulations[.]" 
    22 C.F.R. § 42.81
     (2015).
    The United States Foreign Affairs Manual underscores this point
    further, stating "[t]here are no exceptions to the rule that once
    a visa application has been properly completed and executed before
    a consular officer a visa must be either issued or refused.
    There is no such thing as an informal refusal or a pending case
    once a formal application has been made." 9 FAM 42.81 Nl.
    The apparent conflict between these general agency visa
    regulations and the SIV-specific Joint Reports' statement that an
    "administrative processing" step must precede visa issuance is
    discussed below in section III.B.2.a.
    -9-
    B.   Plaintiffs' Circumstances
    Plaintiffs' Amended Complaint brings claims on behalf of 12
    Plaintiffs -- 8 Iraqi and 4 Afghan citizens -- proceeding under
    the following pseudonyms: Renaldo, Alpha, Bravo, Delta, Foxtrot,
    India, Juliet, Alice, Hotel, Lima, Kilo, and Mike. 5
    There is significant disagreement between the Parties as to
    the circumstances of the 12 Plaintiffs' applications. Some of the
    disagreements are over the Parties'   construction of the law and
    facts at issue in this particular case.    For example,   Plaintiffs
    contend that most of   their applications have not been finally
    granted or refused, but instead, languish in an intermediate stage
    of "administrative processing." See Poellot Deel.      [Dkt.   No.   43-
    1); Pls.' Exs. C-K [Dkt. Nos. 44-2 through 44-10). The Government
    contends, counterintuitively, that while Plaintiffs' applications
    may still be granted following "administrative processing," the
    applications have, in fact, been finally refused. See Dybdahl Deel.
    5 Plaintiffs' initial Complaint [Dkt. No. 3) included the claims
    of additional Plaintiffs under the pseudonyms Frodo, Charlie,
    Echo, and Golf. Frodo and Echo have since been issued visas.
    Gov't's Mot. at 4-5. Charlie and Golf's applications have been
    refused under 8 U.S. C. § 1182 (a) (3) (B) , which provides that
    individuals who have any of the various enumerated ties to
    terrorist activities are ineligible for admission to the United
    States. Id. The Parties agree that Frodo, Echo, Charlie, and Golf
    are no longer Plaintiffs in this suit. See generally Amended Compl.
    -10-
    •                                      •·   ..   '
    ...·
    [Dkt. No.    36-1] . 6 Disagreements of this type are flagged in the
    paragraphs           that    follow    and     are    discussed          more     thoroughly   in
    subsequent sections of this Memorandum Opinion.
    Other        disagreements       are        over   the    Government's          apparent
    factual mistakes.                Because these disagreements appear to concern
    obvious errors,             the Court will resolve them in this section. The
    Court         will    discuss       groups     of     Plaintiffs          collectively     where
    appropriate           and    indicate    when        it    is    resolving        the   Parties'
    competing views of the facts, as it must when facts determine the
    Court's jurisdiction. Jerome Stevens Pharm.,                             Inc. v. Food & Drug
    Admin., 
    402 F.3d 1249
    , 1253 (D.C. Cir. 2005)                             ("the district court
    may consider materials outside the pleadings in deciding whether
    to grant a motion to dismiss for lack of jurisdiction"); Fed. R.
    Civ.     P.    12(h) (3)     ("If the court determines at any time that it
    6 All except one of the refusals relevant to this Motion the
    Government claims to have issued were issued under 8 U.S. C. §
    120l(g), which provides:
    No visa or other documentation shall be issued to an
    alien if (1) it appears to the consular officer, from
    statements in the application,      or in the papers
    submitted therewith, that such alien is ineligible to
    receive a visa or such other documentation under section
    1182 of this title, or any other provision of law,
    (2) the application fails to comply with the provisions
    of this chapter, or the regulations issued thereunder,
    or (3) the consular officer knows or has reason to
    believe that such alien is ineligible to receive a visa
    or such other documentation under section 1182 of this
    title, or any other provision of law .
    -11-
    lacks       subject-matter          jurisdiction,              the     court       must    dismiss   the
    action.").
    1.        Renaldo
    Ronaldo is an Iraqi citizen who applied for COM Approval on
    October 2, 2009, and completed his visa interview on October 13,
    2010.       Amended Compl.          at   ~       62.    A Declaration submitted by the
    Government           (referred to throughout as the Dybdahl Declaration)
    states that as of September 1,                          2015,        Ronaldo' s application had
    been refused under 8 U.S.C.                  §   120l(g). Dybdahl Deel.               ~   5. According
    to    the     Department       of    State's            Consular        Electronic         Application
    Center Case Status Tracker ("Case Status Tracker"), which allows
    applicants to verify the status of their SIV applications, Pls.'
    Ex.     X    [Dkt.    No.    43-16],      as       of    September           11,    2015,    Ronaldo's
    application remained in "administrative processing," Pls.' Ex. C.
    [Dkt. No. 44-4].
    Despite the statement from the Government's own declarant
    that Ronaldo' s           visa had been refused,                       the Government's Motion
    inexplicably asserts four times that Ronaldo has been issued a
    visa,       rendering        his     claims            moot.        Gov't's        Mot.     at   1   n.1
    (inaccurately citing Dybdahl Deel.                           for proposition that Ronaldo
    had been issued a visa);                 id. at 10                 (same);   id.    at 8     (repeating
    claim       without       citation) ;        id.        at     9     (repeating       claim      without
    citation) .          In     their        Opposition,                 Plaintiffs           correct    the
    -12-
    Government's apparent error as to Ronaldo's application status,
    noting that Ronaldo has not been issued a visa. Pls.' Opp'n at 3
    n.3. The Government's Reply does not acknowledge, correct, or even
    address the error.
    Apparently attempting to set the record straight, on October
    15, 2015, Ronaldo's counsel emailed the Immigrant Visa Unit at the
    U.S. Embassy in Baghdad to inquire about the status of Ronaldo's
    application.       See    Ramos-Mrosovsky        Deel.    [Dkt.     No.   48-1].      The
    Immigrant Visa Unit responded:
    Your   client's   case   remains    pending   additional
    administrative processing, which must be completed
    before a final determination can be made on his Special
    Immigrant Visa (SIV) application. As soon as this
    administrative processing stage is finalized, we will
    immediately contact you with further details. No further
    action is required from your client at this time.
    Supp. Deel. Ex. A [Dkt. No. 48-2]            On October 23, 2015, Plaintiffs
    submitted     a    Motion     for    Leave   to    File     this    e-mail      and    an
    accompanying declaration on the docket. On November 6,                        2015, the
    Government        filed    its   Opposition,       which     again,       never       even
    acknowledged its previous erroneous statements as to the status of
    Ronaldo's     visa       application.     Along    with     its    Opposition,         the
    Government filed an updated version of the Dybdahl Declaration
    ("Second     Dybdahl      Deel."),      which,    like     the     previous     Dybdahl
    Declaration,       states    that    Ronaldo's     visa     application        "remains
    -13-
    .~.
    refused under []                8 U.S.C.       §   120l(g) ." Second Dybdahl Deel.   [Dkt.
    No.   49-1).
    Upon this record,                   it is clear that Ronaldo has not received
    a visa.
    2.      Alpha
    Alpha is an Iraqi citizen who applied for COM Approval on
    January 5,          2010,       and completed his visa interview on August 25,
    2011. Amended Compl.                  ~   73. According to the Government's declarant,
    Alpha and his family members were issued visas on August 30, 2015.
    Dybdahl Dec. at             ~    6. Plaintiffs agree that Alpha has been granted
    a visa. Pls.' Opp'n at 3 n.3. However, the Government's Motion to
    Dismiss       --        filed September 1,            2015   --   states at several points
    that Alpha's visa application had been finally refused under 
    8 U.S.C. § 1201
    (g). Gov't's Mot. at 4, 8, 9, 10, and 13. Plaintiffs'
    Opposition notes the Government's apparent error,                           Pls.' Opp'n at
    3 n.3, but the Government's Reply fails to acknowledge it.
    Accordingly,                the Court concludes that Alpha has,             in fact,
    been issued a visa, and Alpha's claims are moot.
    3.      Bravo
    Bravo is an Iraqi citizen who applied for COM Approval on
    March 30, 2011, and completed his visa interview on February 13,
    2012. Amended Compl. at                    ~   81. The Dybdahl Declaration states that
    as of September 1, 2015, Bravo's application had been refused under
    -14-
    '   ~ .. :·.
    
    8 U.S.C. § 1201
    (g), and the Government's Motion states that Bravo's
    application had received a "final" refusal as of that date. Gov't's
    Mot. at 10; Dybdahl Deel.                  ~    7. However, on September 4, 2015, Bravo
    and his family members were issued visas.                       Pls.' Opp'n at 3 n.3;
    Second Dybdahl Deel. at                ~       7. Thus, Bravo's claims are moot.
    4.   Delta.·
    Delta is an Iraqi citizen who applied for COM Approval on
    February 1, 2011, and completed his visa interview on October 4,
    2011. Amended Compl. at                ~       89. The Dybdahl Declaration states that
    Delta and his wife were most recently interviewed by a consular
    officer on August 27, 2015, but as of September 1, 2015, Delta's
    application had been refused under 
    8 U.S.C. § 1201
    (g).        Dybdahl
    Deel. at ~ 9. The Second Dybdahl Declaration, however, states that
    on September 30,      2015,            a consular officer issued visas to Delta
    and his family members. Second Dybdahl Deel. at                     ~ 9.   7   Thus, Del ta' s
    claims are moot.
    5.   Foxtrot, India, Juliet, and Alice
    Foxtrot, India, Juliet, and Alice are Iraqi citizens. Foxtrot
    first applied for COM Approval on March 20,                        2011,       and completed
    his visa interview on September 17, 2012. Amended Compl.                            ~    100.
    7 Plaintiffs' Opposition -- filed September 25,                         2015 -- fails to
    take account of the change in Delta's status.
    -15-
    India first applied for COM Approval on February 2,                     2010.
    Amended Compl.       ~   125.   India and his family members were issued
    visas in June of 2012.          Dybdahl Deel.      ~   14. However,    he and his
    family were not permitted to board a flight to the United States,
    and the visas were subsequently revoked. 
    Id.
    Juliet first applied for COM Approval on March 29, 2011, and
    completed his visa          interview on March 1,         2 012.   Amended Compl.
    ~   139.
    Alice was granted COM Approval on July 11, 2010, and completed
    her visa interview on November 24, 2010. Amended Compl.                 ``   170-71.
    The Dybdahl Declaration states that as of September 1, 2015,
    Foxtrot, India, Juliet, and Alice's applications had been refused
    under 
    8 U.S.C. § 1201
    (g). Dybdahl Deel. at       ``    11, 14, 15, and 19;
    see also Second Dybdahl Deel. at            ``   11, 14, 15, and 19 (repeating
    same as of September 30,           2015).    The Government's Motion states
    that Foxtrot, India, Juliet, and Alice's applications had received
    "final" refusals as of September 1, 2015. Gov't's Mot. at 10.
    According to the Case Status Tracker,                  as of September 24,
    2015, Foxtrot, India, Juliet, and Alice's applications remained in
    "administrative processing." Pls.' Exs. F, H, I, and K. The Parties
    disagree as to whether the "administrative processing" designation
    is consistent with the statement that the applications have been
    finally refused.
    -16-
    .   .   .~.   .                                    ....
    .-
    :'.                                                                       . ·;.,:·.
    6.    Hotel and Lima
    Hotel and Lima are Afghan citizens. Hotel first applied for
    COM Approval on February 10, 2011, and completed his visa interview
    on November 19, 2012. Amended Compl.                    ~    110. Lima applied for COM
    Approval on February 11, 2011, and completed his visa interview on
    February 26, 2012. Amended Compl.                 ~    34.
    The Dybdahl Declaration states that as of September 1, 2015,
    Hotel and Lima's applications had been refused under 8 U.S. C.
    §   120l(g). Dybdahl Deel. at            ``    13 and 17; see also Second Dybdahl
    Deel. at `` 13 and 17 (repeating same as of September 30, 2015).
    The   Government's              Motion     states      that          Hotel       and    Lima's
    applications had received "final" refusals as of September 1, 2015.
    Gov't's Mot. at 10. According to the State Department's Case Status
    Tracker, as of September 24, 2015, Hotel and Lima's applications
    remained in "administrative processing." Pls.' Exs. G and J. Again,
    the Parties disagree as to whether the "administrative processing"
    designation is consistent with the statement that the applications
    have been finally refused.
    7.    Kilo
    Kilo is an Afghan citizen. He submitted his application for
    COM Approval on August 25, 2014, and no action has been taken on
    his application since that time. Amended Compl.                                 ~   33. Lacking COM
    Approval,    a   prerequisite            for     the     second            stage      of     the   SIV
    -17-
    application process, Kilo does not have a complete SIV application
    pending before the State Department. See Dybdahl Deel.                          ~   16; Second
    Dybdahl Deel.         ~    16.
    8.        Mike
    Mike is an Afghan citizen.                    The Dybdahl Declaration states
    that on December 3, 2012, Mike's SIV application was refused under
    
    8 U.S.C. § 1201
    (g). Dybdahl Deel.               at~       18. The Declaration goes on
    to state that on April 23,                    2013, Mike's application was further
    refused under 
    8 U.S.C. § 1182
    (a) (5) (A) , 8 and was returned to            users
    for review and possible revocation of COM Approval. 
    Id.
     According
    to    the   Case     Status       Tracker,      as   of    September 24,       2015,       Mike's
    application was listed as "At NVC [,] " which refers to the State
    Department's National Visa Center. Pls.' Ex. D [Dkt. No. 44-3].
    II.    STANDARD OF REVIEW
    Under Fed.          R.    Civ.    P.   12(b) (1),       "[t]he plaintiff bears the
    burden of invoking the court's subject matter jurisdiction"                                    to
    hear his or her claims. Arpaio v.                      Obama,       
    797 F.3d 11
    ,      19    (D.C.
    Cir. 2015). In deciding whether to grant a motion to dismiss for
    lack of jurisdiction,               the Court must "accept all of the factual
    allegations          in     [the]       [C] omplaint      as     true [.]"   Jerome    Stevens
    8 It is far from clear what relationship the cited statute has to
    Mike's Afghan SIV application, as .
    8 U.S.C. § 1182
    (a) (5) (A)
    specifies the grounds for denying entry to "alien[s] who seek[] to
    enter the United States for the purpose of performing skilled or
    unskilled labor[.]"
    -18-
    Pharm., 
    402 F.3d at 1253-54
     (quoting United States v. Gaubert, 
    499 U.S. 315
    , 327 (1991))       (internal quotation marks omitted). However,
    "[w] here necessary to resolve a              jurisdictional challenge under
    Rule 12(b) (1),    the court may consider the complaint supplemented
    by undisputed facts        evidenced in the           record,       or the complaint
    supplemented by undisputed facts plus the court's resolution of
    disputed facts." Banneker Ventures, LLC v. Graham, 
    798 F.3d 1119
    ,
    1129    (D.C.   Cir.    2015)   (internal         citation    and    quotation marks
    omitted).
    In order to survive a motion to dismiss under Rule 12(b) (6),
    a plaintiff need only plead "enough facts                     to state a claim to
    relief that is plausible on its face"                 and to "nudge [ ]         [his or
    her]   claims across the line from conceivable to plausible." Bell
    Atlantic Corp.     v.    Twombly,    
    550 U.S. 544
    ,     570    (2007).   "[O]nce a
    claim has been stated adequately,             it may be supported by showing
    any set of facts consistent with the allegations in the complaint."
    
    Id. at 563
    .
    Under the Twombly standard,            a    "court deciding a motion to
    dismiss must not make any judgment about the probability of the
    plaintiffs' success .               [,] must assume all the allegations in
    the complaint are true          (even if doubtful in fact)                      [, and]
    must give the plaintiff the benefit of all reasonable inferences
    derived from the facts alleged." Aktieselskabet AF 21. November
    -19-
    '·";   ...
    •.. ·
    2001 v. Fame Jeans Inc.,                        
    525 F.3d 8
    , 17           (D.C. Cir. 2008)      (internal
    quotation marks           and              citations        omitted) .      A complaint        will     not
    suffice,     however,              if it "tenders             'naked assertion[s]'             devoid of
    'further factual enhancement."' Ashcroft v.                                    Iqbal, 
    556 U.S. 662
    ,
    678    (2009)    (quoting                  Twombly,    
    550 U.S. at 557
    )     (alteration    in
    Iqbal) .
    III. ANALYSIS
    A.     Plaintiffs'                   Motion     for        Leave     to     File     Supplemental
    Declaration
    Plaintiffs request leave to file an e-mail from the Immigrant
    Visa   Unit     of   the                 U.S.   Embassy      in    Baghdad,        Iraq    stating    that
    Ronaldo's application remains in "administrative processing, which
    must be completed before a final determination can be made on his
    [SIV] application." Supp. Deel. Ex. A [Dkt. No. 48-2]. Plaintiffs
    also ask to file a Declaration explaining the e-mail's origin.
    Supp. Deel.      [Dkt. No. 48].
    The    Government                   argues    that     Plaintiffs'           additions    to     the
    record are redundant and unnecessary. But Plaintiffs' submission
    serves to rectify confusion that the Government itself created.
    As     discussed                   above,      see      supra        section        I.B.1.,      the
    Government's Motion erroneously states four times that Ronaldo has
    been issued a        visa.                 That is clearly incorrect as shown in the
    -20-
    e-mail,    which removes the confusion caused by the Government's
    mistake.
    The Court finds it very troubling that the Government would
    make important factual misstatements,                     fail    to acknowledge them
    when     they     are    proven   to   be    incorrect,          and   then    oppose     the
    submission of evidence which corrects the mistake.
    Second,    the Government contends that Plaintiffs'                     submission
    is merely an attempt to reiterate arguments from their Opposition.
    However,     Plaintiffs'      submission       is       not   argument    but       evidence,
    which     bears     on    facts   critical         to    establishing         the     Court's
    jurisdiction.
    Third,     the    Government        argues       that     because      Plaintiffs'
    applications have been finally refused, they should not be able to
    supplement the record with evidence to the contrary.                                Obviously
    this argument rests upon the premise that Plaintiffs' applications
    have been finally adjudicated,               but as the Court explains below,
    the record demonstrates that they have not.
    Finally,     the Government contends that if the Court accepts
    Plaintiffs'         supplemental       filing,           "fairness       requires        that
    Defendants also be allowed to provide an updated [D]eclaration to
    ensure that the Court has the proper context in which to analyze
    the jurisdictional facts as they have developed." Gov't's Opp'n to
    Pls.' Mot. at 4.
    -21-
    ...
    ~.   .                                      ..-..   '
    In the interest of efficiency and accuracy in establishing
    facts relevant to the Court's jurisdiction, the Court will grant
    Plaintiffs' Motion and consider both the submitted e-mail as well
    as the updated Declaration that the Government has submitted. See
    Supp.     Deel.       Ex.    A          [Dkt.     No.   48-2];    Second Dybdahl Deel.                  [Dkt.
    No. 49-1]
    B.         Counts 3-6: Failure to Adjudicate Plaintiffs'
    Applications
    Counts 3 through 6 of Plaintiffs' Amended Complaint seek an
    order        directing       the          Government       to     adjudicate            Plaintiffs'       SIV
    applications, which, according to Plaintiffs, are awaiting final
    action.           Counts 3 and 4 arise under the Mandamus Act,                                   
    28 U.S.C. § 1361
    ,         which     grants              district       courts    jurisdiction             to     hear
    "action [s]          in the             nature of mandamus             to compel an officer or
    employee of the United States or any agency thereof to perform a
    duty owed to the plaintiff." 
    Id.
     Counts 5 and 6 are brought under
    the APA's grant of authority to "compel agency action unlawfully
    withheld or unreasonably delayed[.]" 
    5 U.S.C. § 706
    (1).
    Plaintiffs           contend             that    the     APA    requires          Defendants       to
    finally           adjudicate             their      applications         within          a   "reasonable
    time[.]      /1
    
    5 U.S.C. § 555
     (b)     ("With due regard for the convenience
    and necessity of the parties or their representatives and within
    a reasonable time, each agency shall proceed to conclude a matter
    -22-
    presented to it."). They further contend that the RCIA and AAPA
    establish nine months as the presumptively reasonable period in
    which to adjudicate applications. RCIA           §   1242 ( c) ( 1)   ("all steps
    under the control of the respective departments incidental to the
    issuance     of   such    visas,   including    required       screenings        and
    background checks,        should be completed not later than 9 months
    after the date on which an eligible alien submits all required
    materials    to complete an application for           such visa.");       AAPA     §
    602(4) (A)   (same). Because Plaintiffs claim to have waited longer
    than nine months for final action on their applications, they ask
    that the Court compel such action under the Mandamus Act and/or
    the APA.
    The     Government    contends   that   Plaintiffs      lack     standing    to
    bring their claims, that the Court otherwise lacks jurisdiction to
    hear Plaintiffs' claims, and that Plaintiffs have failed to state
    a claim upon which relief can be granted. Two arguments are central
    to these grounds for dismissal: 1) that Plaintiffs' applications
    have already been finally denied and are not subject to judicial
    review under      th~   doctrine of consular nonreviewabili ty,            and 2)
    that Plaintiffs have failed to identify a non-discretionary duty
    owed to them or judicially manageable standards                   to assess      the
    Government's performance of any such duty.
    -23-
    ...
    •.. ·.
    ~.   '
    1.         Standing
    The    Government                 contends        that      Plaintiffs                          lack     standing      to
    litigate Counts 3-6.                     In order to establish standing,                                          Plaintiffs
    must demonstrate                  (1)    that they have suffered an injury in fact
    that is (a) concrete and particularized and (b) actual or imminent,
    not conjectural or hypothetical;                                ( 2)    that the injury is fairly
    traceable to the challenged action of the defendant; and (3) that
    it is likely,            as opposed to merely speculative,                                               that the injury
    will be redressed by a favorable decision. Lujan v. Defenders of
    Wildlife, 
    504 U.S. 555
    , 560-61 (1992).
    As    alleged              in    the       Amended    Complaint,                 Plaintiffs'                    primary
    injury       is        the    deprivation               of   final        decisions                        on     their      SIV
    applications             within              a    reasonable           time     as                     required        by   RCIA
    §   1242 (c) (1), AAPA             §    602 (b) (4) (A), and the APA, 5                                  u.s.c.    §    555 (b)'.
    Plaintiffs als9 allege that the Government's failure to provide
    timely adjudication of their applications has exposed them and
    their families               to serious,               imminent threats                            to their life and
    well-being as a                   result of their service to the United States.
    Amended Compl.               ``   223, 232, 242, 251.
    The Government argues that Plaintiffs lack standing to pursue
    their claims because their applications have, in fact, been finally
    refused.      According                 to       the   Government,            because                    Plaintiffs         have
    -24-
    received final refusals,                  they have received everything to which
    they are entitled and have suffered no redressable injury.
    The     Government           is       incorrect.       Because    the     Government's
    contention that Plaintiffs'                    SIV applications have already been
    finally      adjudicated          is     intricately intertwined with                 its    other
    jurisdictional          argument           based    on    the      doctrine      of    consular
    nonreviewability, it can only be unraveled with close scrutiny of
    the factual record. Accordingly, the Court addresses this issue in
    detail in section III.B.2.a.
    For present purposes, however, the Court notes the following
    conclusions          that   are     fully      explained below:          Ronaldo,      Foxtrot,
    India, Juliet, Alice, Hotel, and Lima's SIV applications have not
    been    finally        refused         and     instead,       remain    in    "administrative
    processing,"         see infra section III. B. 2. a. ; Mike and Kilo's SIV
    applications likewise await additional actions by the Government
    and    thus,    have        not    been       finally     refused,      see    infra        section
    III.B.2.c.;          Alpha,       Bravo,      and   Delta's       applications        have    been
    granted,       and    thus,       their       claims    are    moot,    see    infra        section
    III.B.2.a.      Accordingly,             Ronaldo,      Foxtrot,    India,      Juliet,      Alice,
    Hotel, Lima, Mike, and Kilo have suffered an injury in fact: the
    failure to receive final decisions on their SIV applications within
    a reasonable period.
    -25-
    Having shown that they have suffered an injury,                              Plaintiffs
    must     also         show     that    their       alleged       injury    is    caused    by    the
    complained of            conduct.        The Government raises              no argument with
    respect to causation.                  Plaintiffs' alleged injury -- the lack of
    final     decisions on their SIV applications                               is quite clearly
    caused      by        Defendants'        conduct         (i.e.,     Defendants'     failure       to
    adjudicate the applications). Thus, Plaintiffs have satisfied the
    causation prong of the standing inquiry.
    Finally, the Government argues that a favorable decision by
    this Court would not redress Plaintiffs'                               injury.   The Government
    first contends that Plaintiffs are not entitled to redress because
    the timelines set out by Congress for the adjudication of SIV
    applications             are      discretionary.             This       argument,     like        the
    Government's contention that Plaintiffs'                               applications have been
    finally             refused,      is     also           deeply    interwoven        with        other
    jurisdictional               arguments,      which        will    be    fully    discussed       and
    rejected below in section III.B.3. In summary, the APA, 
    5 U.S.C. § 555
     (b) ,       creates a         duty   for    the Government          to reach a          final
    decision on Plaintiffs' applications "within a reasonable period,"
    and RCIA        §    1242(c) (1) and AAPA           §    602(4) (A) clarify that that duty
    is non-discretionary and must                           "ordinarily"      be completed within
    nine months. See infra section III.B.3.
    -26-
    ....
    The Government also argues that the Court may not redress
    Plaintiffs' injuries because courts are not free to fash{on their
    own "coercive sanctions" to bring about compliance with statutory
    deadlines.      See Gov't's Reply at 15     (citing,          inter alia,     United
    States v. James Daniel Good, 
    510 U.S. 43
    , 63 (1993)). In that case,
    the Supreme Court overturned a           Court of Appeals'          holding that
    failure to comply with certain timing requirements applicable to
    asset forfeiture mandated dismissal of the forfeiture action. 
    510 U.S. at 63
    .   The Supreme Co'urt characterized the            lower court's
    dismissal of the Government's action as the creation of a "coercive
    sanction" on the Government's failure to meet certain statutory
    timing directives. 
    Id.
    That is not the situation in this case.                Plaintiffs do not
    seek to construct any sanction for the Government's failure to
    process their SIV applications,          nor do they seek review of any
    substantive decisions by the Government. Instead,                 Plaintiffs ask
    the Court to do just what the APA and the Mandamus Act authorize:
    issue    an order to adjudicate     their applications,             whatever the
    substantive results may be.        See    
    5 U.S.C. § 706
     (1);   
    28 U.S.C. § 1361
    .    Such an order would directly redress Plaintiffs'                 injury
    caused by the Government's failure to decide.
    In short,    Plaintiffs have been injured by the                 failure   to
    obtain final decisions on their SIV applications,                 that injury is
    -27-
    caused by the Government's failure to act, and the injury would be
    redressed by an order from this Court.             Accordingly,   Plaintiffs
    have   made    the    injury,   causation,   and   redressability   showings
    required to establish standing to pursue their claims. Lujan, 
    504 U.S. at 560-61
    .
    2.     The Doctrine of Consular Nonreviewability
    As already discussed, the Government's major argument is that
    Plaintiffs' applications have already been finally refused and the
    doctrine of consular nonreviewability precludes any further review
    of those decisions. This fact,         the Government contends, deprives
    Plaintiffs of standing to bring their claims,             and deprives the
    Court of jurisdiction to hear them.
    The Government summarizes the core of its argument in its
    opening brief:
    Because each and every Plaintiff received final action
    under 
    8 U.S.C. § 1201
    (g), a valid statutory basis of
    ineligibility (see generally Ex. 1, Dybdahl Declaration
    (listing dates of refusals)), the doctrine of consular
    nonreviewability bars Plaintiffs' requests for review of
    final decisions of a consular officer. See Saavedra
    Bruno [v. Albright, 
    197 F. 3d 1153
    , 1156 (D. C. Cir.
    1999)]. Thus, Plaintiffs' requests for adjudication of
    their applications, and communication of the results,
    can only be viewed as confused or disingenuous. See
    Compl. at· Prayer for Relief ~ 3. Indeed, what the
    Plaintiffs truly appear to seek is judicial re-
    adjudication -- or review -- of these final decisions.
    The doctrine prohibits this.
    Gov't's Mot. at 24.
    -28-
    a.      Status of Plaintiffs' Applications
    The Government asserts,              repeatedly and emphatically,                  that
    "[i] n     this     case,     each    and     every    Plaintiff     who    made       a    visa
    application appeared for a live interview to execute their visa
    applications and received a final refusal under 8 U.S.C.                           §   120l(g)
    and/or other grounds." Gov' t' s Mot. at 13; id. at 14 ("Each refusal
    constituted a         final decision as a matter of law.");                   id.          ("like
    Plaintiff Alpha,            the other Plaintiffs have indeed received final
    agency action -- denials of their visa applications under 8 U.S.C.
    §   120l(g)");       see also Gov't's Mot.             at 23,    24. Accordingly,             the
    Government contends that "what the Plaintiffs truly appear to seek
    is judicial re-adjudication--or review--of these final decisions."
    Gov't's Mot. at 24 (emphasis in original).
    However,    the facts do not support the Government's repeated
    and emphatic assertions.
    As discussed in section I.B. above, Plaintiffs Alpna, Bravo,
    and Delta have clearly received final decisions granting their SIV
    applications.         Thus,     their    claims       are   moot,    and    they       have    no
    standing to litigate the case.
    Ronaldo,     Foxtrot,       India,    Juliet,      Alice,   Hotel,   and Lima's
    situations are not quite as simple. The Government contends that
    these seven Plaintiffs have each received final                            refusals under
    8 U.S.C.     §    120l(g), which provides in relevant part that consular
    -29-
    ..
    . :·.
    officers shall not issue visas if an applicant is ineligible to
    receive a visa or the application fails to comply with applicable
    statutory and regulatory provisions.                  E.g.,   Gov' t' s Reply at 14
    ("all      Plaintiffs    who    have    made    SIV applications                 have     already
    received final decisions"              (emphasis in original)); Dybdahl Deel.
    at   ``    5, 11, 13, 14, 15, 17, 19.
    Plaintiffs,    on     the     other       hand,     contend             that      their
    applications have not been refused,                 and instead,             languish in an
    intermediate and amorphous stage of "administrative processing."
    See Pls.' Exs. E-K (screen shots of State Department's Case Status
    Tracker      showing    these   seven     Plaintiffs'       application status                 as
    "administrative processing," as of September 24, 2015).
    In support of their contention that their applications have
    not received a final decision, Plaintiffs put forth a significant
    body of evidence.9 First and foremost,                 the Government's own Case
    Status Tracker states that Plaintiffs'                  applications remained in
    "administrative         processing"      as    of    September             24,    2015.     Pls.'
    Exs. E-K.
    9 Again, while Courts do not ordinarily make factual findings at
    the motion-to-dismiss stage, Aktieselskabet, 
    525 F.3d at 17
    , the
    Court must do so here because the status of Plaintiffs'
    applications determines the Court's jurisdiction to entertain
    their claims. See Saavedra Bruno, 
    197 F.3d at 1162
    ; Jerome Stevens
    Pharm., 
    402 F.3d at 1253-54
     (holding that courts may look beyond
    pleadings in the complaint to ascertain their own jurisdiction) .
    -30-
    The Government responds that "administrative processing" is
    not distinct from final refusal.                  Gov't's Mot.      at 13-15.         In the
    Government's       view,   when     an   SIV      applicant     leaves      a    consular
    interview without a visa in hand, his or her application has been
    denied.    Id.    at 13.   In support of           its position,       the Government
    points    to     regulations    and State Department             guidance       documents
    indicating       that   consular    officers        must    grant   or   deny         a    visa
    application immediately once the application is complete. 22 C.F.R
    §   42.81(a).     ("When a visa application has been properly completed
    and executed before a consular officer .                     . the consular officer
    must     either    issue   or     refuse     the     visa            .").       The       State
    Department's Foreign Affairs Manual                  ("FAM")   adds,     "There is no
    such thing as an informal refusal or a pending case once a formal
    application has been made." 9 FAM 42.81                Nl.
    Thus,     according to      the Government,          because all         visas       are
    either issued or denied immediately, any further processing of a
    visa application is best viewed as a                   "reconsideration"              of    the
    application's denial, rather than an additional step in the 14-step
    process. See Gov't's Mot. at 15; Gov't's Reply at 7 ("It is to the
    benefit of the visa applicant that, even after a final [§ 1201(g)]
    refusal, a consular officer may continue to consider a case (i.e.,
    to engage       in further administrative processing)                  to potentially
    further adjudicate the visa application. But a consular officer's
    -31-
    discretionary     decision       to    allow      for       further      administrative
    processing after a        [§   1201 (g)]    refusal does not create any new
    legal duty,    and does not give an applicant any basis to sue to
    expedite that post-refusal processing.").
    However,         additional      evidence           presented      by    Plaintiffs
    demonstrates that the Government's characterization of the visa
    decision    process     conflicts     with     its       own   actual    practices      and
    statements.
    The dozen Joint Department of State / Department of Homeland
    Security Reports        to Congress        ("Joint Reports")            that Plaintiffs
    have filed make clear that "administrative processing" is not a
    discretionary opportunity for              reconsideration.           Pls.'   Exs.     L-W.
    Rather,    each and every one of the Joint Reports submitted makes
    clear that "administrative processing" is a mandatory step in the
    SIV application process.           "Administrative processing"                is not an
    opportunity     for    reconsideration       of      a    decision      but   is   a   pre-
    requisite to reaching the decision itself--a crucial distinction.
    Indeed,      the      Joint      Reports            describe       "administrative
    processing" as step 13 of the 14 required steps in the SIV process.
    ~,    Pls.' Ex. Lat 3-4 [Dkt. No. 43-4]. The Joint Reports state
    that at step 12, which is the interview stage, the "[a]pplicant is
    interviewed by [a]       consular officer on the scheduled appointment
    date [,]" and "[a] dministrative processing is initiated following
    -32-
    •.                               . -.~.
    •.. ·.
    .
    the   interview."        ~,                    id.    At    step    13   "[t] he   applicant's      case
    undergoes administrative processing [.]"                                 Id. At step 14,        "[u] pon
    completion     of       administrative                      processing,       [the]     applicant     is
    instructed to obtain a medical exam. The visa is issued if [the]
    applicant is eligible."                         E.g. ,     id.    Nowhere do the Joint Reports
    indicate   that     a    final                 decision is made before                "administrative
    processing" begins.
    The Joint Reports go on to note that "[e]ven if an applicant
    has acted promptly in each of the applicant-controlled steps that
    precede    step         13               of     the        SIV     application        process
    administrative processing] ,                          applications may be pending longer
    than nine months             for completion of administrative processing."
    ~,id.        at 4-5. 10 The section concludes,                               "Although step 13 is
    lengthy,     process                     enhancements             have   resulted        in     improved
    efficiency."      ~,                     id.    at    5.    The    other Joint        Reports   contain
    substantially the same statements. See Pls.' Exs. L-W. 11
    10According to the Joint Report for SIVs issued between April 1,
    2014 and March 31, 2015, administrative processing took an
    average of 153 business days. Pls.' Ex. Lat 4.
    11 The Joint Reports' invocation of the nine month timeline is
    itself   an    indication      that  the   Government       understands
    "administrative processing" to constitute a pre-cursor to a final
    decision. RCIA § 1242 ( c) ( 2) and AAPA § 602 (b) ( 4) (A) state that
    "all steps under the control of the respective departments
    incidental to the issuance of such visas, . , . should be completed
    not later than 9 months after the date on which an eligible alien
    submits all required materials to complete an application for such
    visa."
    -33-
    Defendants' formal representations to Congress in their Joint
    Reports are simply incompatible with the notion that SIV applicants
    in general,    and Plaintiffs in particular,            have already received
    final decisions on their applications by the time they reach the
    "administrative processing" stage.
    Documents   that     the   Government     gives        to    SIV   applicants
    following their consular interviews also belie the Government's
    contention that     such    "denials"   are    final     or even any kind of
    decision at all. For example, following their consular interviews,
    Plaintiffs who applied through the             Baghdad Embassy received a
    notice stating "[w]e have refused your visa under section 221(g)
    of the Immigration and National Act [8 U.S.C.             §    120l(g)J until: We
    complete administrative processing. We will contact you when it is
    finished."    Iraqi Refusal Notice,      Pls.'    Ex.    BB        (emphasis added).
    This   artfully    worded   letter   appears     calculated          to   obtain   the
    benefits of consular reviewability and to comply with internal
    If administrative processing constituted reconsideration of SIV
    applications, as the Government claims, then time spent on such
    reconsideration would not count toward the nine-month target for
    completing "all steps . . . incidental to the issuance of [SIVs.]"
    Id.   However,  the   Government   does   count   delays  due   to
    "administrative processing" toward the nine-month time line, see
    Pls.' Exs. L-W, which further indicates that "administrative
    processing" is part of the visa review process and not mere
    reconsideration of applications, which have already been denied.
    -34-
    ....
    .·      :
    State Department regulations 1 2 by indicating that a decision has
    been made. But the text that follows the word "until" makes clear
    that    no       final       decision    on    the    application           will    occur    until
    "administrative processing" is complete . 1 3
    The       notice       provided    to    applicants     at        the       Kabul   Embassy
    similarly advises applicants that their application "needs further
    administrative               processing."      See    Afghan   Refusal             Notice,    Pls.
    Ex. CC. It states,              "We cannot give you a definitive date when the
    processing will be completed,                   and it will          likely take several
    months or more."              Id. Again presumably attempting to trigger the
    doctrine of consular nonreviewability, the Afghan Refusal Notice
    also states that the Notice "constitutes a denial of a visa" under
    
    8 U.S.C. § 1201
    (g). 
    Id.
    However,      if "administrative processing" is a necessary step
    in the SIV application process,                      the failure            to receive a visa
    before "administrative processing" is completed is not a denial at
    all.   In fact,          if an applicant were somehow to receive a visa in
    12   See 22 C.F.R        §    42.Sl(a); 9 FAM 42.81 Nl.
    13 Another district court has held that a similarly equivocal
    statement did not constitute a denial. Assad v. Holder, Civ. No.
    2:13-00117, 
    2013 WL 5935631
    , at *l & *4 (D.N.J. Nov. 1, 2013)
    ("[L]etter [received by visa applicant that] stated that the case
    required 'Administrative Review' and that 'new information, when
    available, will be communicated to you in writing'" was held to
    "clearly indicate that the decision on [plaintiff's] visa [was]
    still pending and not final.").
    -35-
    .
    advance       of   administrative       processing,      that     step   would   be
    premature. The Government has never argued that "administrative
    processing" could be completed immediately after the interview.
    Indeed the Joint Reports           show that      "administrative processing"
    usually requires many months to finish. See e.g., Pls.' Ex. S (as
    of July 15,        2014,   the average Afghan SIV application spent 145
    business days in "administrative processing").
    The U.S. Embassy in Baghdad's website also demonstrates that
    "administrative processing"          does not mean "refused." A page on
    that website informs SIV applicants of the meaning of what they
    will    see    upon    logging   into     the    State   Department's     Consular
    Electronic Application Center:
    You will       see one of    the    following     status   indicators
    appear:
    Administrative                Your case is currently
    Processing
    undergoing additional administrative processing. This
    processing can take several months to be completed~ You
    do not need to contact us. We will contact you with
    further instructions once this processing stage is
    finalized.
    Issued - Your visa has been issued and we are preparing
    the return of your passport to you using the prepaid
    courier airway bill you provided to us during your
    interview. You will receive an email from us with your
    shipment tracking number as soon as your visa has been
    posted in the mail.
    Refused - Your visa application has been refused. Please
    see the letter you received during your interview, or by
    mail, for further details.
    -36-
    Pls.' Ex. X at 2 (available at http://iraq.usembassy.gov/
    administrative-processing.html) . 14
    Although   Bravo' s    claims         are   now moot,      the    facts     of   his
    application are part of the record before the Court, and they shed
    additional     light    on    the       SIV       approval   process.        The    Dybdahl
    Declaration asserts          that   Bravo         and his    family      appeared     for   a
    consular interview on August 31, 2015, but that as of September 1,
    2015,    his "case remains refused under INA                  §    221(g),    8    u.s.c.   §
    1201 (g) . " Dybdahl Deel. at       ~    7 . 15
    The Second Dybdahl Declaration states that just three days
    later,    on September 4,      2015, a consular officer issued visas to
    14 See also Pls.' Opp'n at 16 (citing other portions of the Baghdad
    Embassy's website stating, among other things, "We initially
    refuse most immigrant visa applications under [
    8 U.S.C. § 1201
    (g)].
    There is usually no need to worry: it is almost always a temporary
    refusal." (emphasis in original) (quoting Pls.' Ex. AA (available
    at        http://iraq.usembassy.gov/221g/what-does-a-22lg-refusal-
    mean.html)).
    This statement from the Embassy website is                       not consistent with
    the Foreign Affairs Manual's statement that                        "[t]here is no such
    thing as an informal refusal or a pending                          case once a formal
    application has been made." 9 FAM 42. 81 Nl.                       An application that
    received only "temporary refusal" would seem                      to remain pending.
    15It bears repeating that the Dybdahl Declaration also states that
    the applications of seven other Plaintiffs had been "refused"
    despite the Case Status Tracker's indication that they remained in
    "administrative processing." Dybdahl Deel. `` 5, 11, 13, 14, 15,
    17, 19; Pls. Exs. E-K. The record does not include a Case Status
    Tracker entry for Bravo during this three-day period, but from
    Plaintiffs' allegations and the facts in the record, it would seem
    that between August 31 and September 4, 2015, Bravo's application
    was in "administrative processing."
    -37-
    .   .   -.~.
    Bravo and his family members. Second Dybdahl Deel.                                        ~    7. There is
    no evidence in the record indicating that Bravo supplemented his
    application in any way between August 31,                          2015 and September 4,
    2015.
    In    the    Government's       view,       when        Bravo              left       the    Baghdad
    Consulate on August 31,              2015, his visa had been finally refused
    under    8    U.S.C.    §    120l(g).    In light          of    the Government's Joint
    Reports,      this     characterization strains                 credulity.                    Gov't's Mot.
    at 9.        Plainly,        Bravo's     application--like                          those           currently
    undergoing             "administrative              processing"--remained                               under
    consideration on August 31, 2015, and the Government only reached
    a final decision on September 4, 2015.
    Finally,       if    there     was    any     doubt        that               "administrative
    processing"          precedes--and           does     not         equate                  to--a         final
    determination,          Plaintiffs'          supplemental           filing                    settles     the
    question. In response to an e-mail written "to follow up with [the
    U.S.     Embassy        in    Baghdad]        on     the        status               of         [Ronaldo's]
    application[,]" the Immigrant Visa Unit of the Embassy replied:
    Your   client's   case   remains    pending   additional
    administrative processing, which must be completed
    before a final determination can be made on his Special
    Immigrant Visa (SIV) application. As soon as this
    administrative processing stage is finalized, we will
    immediately contact you with further details. No further
    action is required from your client at this time.
    -38-
    ... ..
    ..   ····;
    Pls.'    Supp. Deel. Ex. A (emphasis added). This e-mail shows,       as
    does the abundance of other evidence Plaintiffs provide, that any
    Plaintiff with an application in "administrative processing" has
    not yet received a final decision. 1 6
    The Government argues that because 8 U.S.C.   §   120l(g) places
    the burden of demonstrating visa eligibility on the applicants, a
    consular officer's failure to grant a visa following an interview
    means that Plaintiffs have not met their burden. The Government's
    argument, however, does not mesh with the SIV adjudication process
    it has described to Congress.      Pursuant to   the 14-step process
    described above, _no SIV applicant could possibly receive a visa
    16In a curious passage of its opening brief, the Government asserts
    that "[i]n an effort to manufacture jurisdiction, Plaintiffs
    equivocate, selectively substituting the term 'administrative
    processing' for adjudication where it suits them." Gov't's Mot. at
    13. But , Plaintiffs have not created the term "administrative
    processing." The Government has told Plaintiffs in e-mails,
    letters, and the State Department's own Case Status Tracker that
    their   applications   remain   in   "administrative   processing."
    Plaintiffs take "administrative processing" to mean what the
    Government says it means in its reports to Congress and on its
    Embassy website: one of 14 steps that must be completed before an
    SIV may be issued.
    Indeed,  it is the Government that equivocates: Sometimes
    "administrative processing" means "administrative processing";
    other times it means finally adjudicated. The Government admits as
    much elsewhere in its briefing. See Gov't's Reply at 10 ("It is
    understandable as a practical matter that the State Department's
    references to 'administrative processing' in various contexts may
    create confusion. But the use of the term 'administrative
    processing' following a visa refusal does not, in any way, nullify
    the refusal or render it non-final as a matter of law.").
    -39-
    before        "administrative         processing,"              and      "administrative
    processing" necessarily follows the consular interview. Thus, the
    fact that an SIV applicant does not receive a visa after his or
    her interview says nothing about whether he or she has met his or
    her burden.
    Despite the convincing evidence Plaintiffs cite to show that
    Defendants have not finally adjudicated their SIV applications,
    whi.ch still remain in "administrative processing," the Government
    contends that the Court should treat those applications as finally
    denied   as    a     matter    of   law.   Gov't's       Mot.      at 25   ("Plaintiffs'
    disagreement with the discretionary decisions of consular officers
    does not change the fact that their applications were refused. As
    a matter of law, the inquiry ends there."). The Court disagrees.
    The Government contends that because regulations and State
    Department guidance documents governing the visa process require
    consular      officers    to    "either     issue       or   refuse     the    visa"    when
    presented with a         complete     application,           the   Court      should treat
    Plaintiffs pending applications as refused.                        Gov' t' s   Mot.    at 11
    (quoting 
    22 C.F.R. § 42.81
    ); see also 9 FAM 42.81 Nl. However, it
    is   clear    that    visa    applications        are    not    always     being      finally
    refused in any meaningful sense immediately upon presentation of
    -40-
    a completed application. 17 The Foreign Affairs Manual's statement
    that "[t]here is no such thing as an informal refusal or a pending
    case once a formal application has been made[,]" 9 FAM 42.81 Nl,
    simply does not accord with Defendants' practices, as the record
    demonstrates.
    The Government also cites 8 U.S.C.        §   120l(g) itself for the
    proposition that Plaintiffs have all received final refusals as a
    matter of law.     Gov't's Mot.     at 14   ("Each refusal constituted a
    final decision as a matter of law. See 
    8 U.S.C. § 1201
    (g) ."). But
    §    1201(g) merely contains the (expansive) criteria for refusing an
    application; it does not establish when or whether, as a matter of
    law, an application has been refused.
    The   Government   next    turns    to   case    law,     arguing   that
    "Plaintiffs     fail   to meet    their burden    to    demonstrate    standing
    because there is a long line of cases explaining that non-resident
    aliens lack standing to challenge the determinations associated
    with their visa applications,        which belong to the political and
    not judicial branches of government." Gov't's Mot. at 16 (quoting
    Van Ravenswaay v. Napolitano, 
    613 F. Supp. 2d 1
    , 5 (D.D.C. 2009)).
    17 Indeed, at least one other District Court has reached the same
    conclusion. See Schutz v. Secretary, Department of State, No. 6:11-
    cv-1296-0rl-31, 
    2012 WL 275521
    , at *2-4 (M.D. Fla. Jan. 31, 2012)
    (holding that 
    22 C.F.R. § 42.81
     did not render application
    "refused" when applicant was not issued visa and only explanation
    was reference to broad statute stating many grounds for denial) .
    -41-
    The Government's argument--and the case it cites--rest upon
    the premise that that Plaintiffs seek to challenge elements of a
    final decision with which they disagree. Van Ravenswaay,                  
    613 F. Supp. 2d at 4
     (holding that doctrine of consular nonreviewability
    precluded action useeking judicial review regarding the action of
    the   consul"    when    the    consul    had    denied     plaintiff's     visa
    application) .   But    for    the   reasons    already   stated,   Plaintiffs
    applications remain pending and have not been finally denied. Thus,
    Van Ravenswaay offers no aid to the Government's case.               Moreover,
    Plaintiffs are not challenging the substance of any decisions made
    by the Government.
    The   Government   also    makes   much    of   a   passage   in   Justice
    Kennedy's concurrence in Kerry v. Din, 
    135 S.Ct. 2128
    , 2141 (2015),
    in which he states that the Government satisfies any due process
    duty owed to visa applicants and their citizen relatives when it
    cites the statutory basis for a visa application's denial.                   But
    again,   the Government's reliance is misplaced. Plaintiffs do not
    contend that they were entitled to a more fulsome explanation of
    the Government's decision on each of their SIV applications
    they merely claim that they are entitled to a decision. 18
    18The Government also looks to Svensborn v. Keisler, No. C07-5003
    TEH, 
    2007 WL 3342751
    , at *4 (N.D. Cal. Nov. 7, 2007) and Toor v.
    Clinton, No. 1:09CVF2790WWGSA, 
    2009 WL 1582900
    , at *4-*5 (E.D.
    Cal. June 4, 2009) for support. In both, the court considered
    whether  the   plaintiffs  could bring an action      to   compel
    -42-
    .   . ...   ~.
    The   Government   next    claims    that   its       denial              of   the    SIV
    applications of two Plaintiffs named in the initial Complaint, but
    not in the Amended Complaint, somehow indicates that the remaining
    Plaintiffs' applications have been denied:
    Plaintiffs do not deny, and cannot deny, that since the
    outset of this action,       two of the nin~ original
    Plaintiffs have been refused visas on terrorism-related
    grounds. See Dybdahl Deel. at 3, 4-5 (discussing visa
    refusals of Plaintiffs Charlie and Golf under 
    8 U.S.C. § 1182
     (a) (3) (B)). Yet Plaintiffs' original Complaint,
    ECF No. 1, made the same arguments for Plaintiffs Charlie
    and Golf that Plaintiffs continue to make for all others
    in this case. But there is no question, and Plaintiffs
    make no argument, that Defendants can somehow ignore
    their statutory duty under 
    8 U.S.C. § 1182
    (a)
    including subsection (a) (3) (B) - - which prohibits the
    issuance of visas to, inter alia, persons who engage in
    terrorist activities.
    Gov't's Reply at 5.
    This argument makes little sense (and even tends to support
    Plaintiffs' contentions). By omitting Golf and Charlie from their
    Amended Complaint, Plaintiffs appear to agree that they received
    final    decisions   on    their   applications     after                  they   filed      their
    initial Complaint and, as already noted, are not seeking review of
    the   substance of    the decision.         See Compl.        (filed February 26,
    2015); Dybdahl Deel.       ``   8, 12 (Charlie's application denied under
    reconsideration of their visa applications. In the case at hand,
    however, Plaintiffs do not ask for reconsideration because they
    have not yet received final decisions on their SIV applications.
    Accordingly, Svensborn and Toor are inapplicable.
    -43-
    §   1182(a) (3) (B) on May 7, 2015 and Golf's application denied under
    §   1182 (a) (3) (B) on June 28, 2015).
    None     of    the   remaining        Plaintiffs,      however,       have   received
    final, terrorism-related refusals under 
    8 U.S.C. § 1182
    (a) (3) (B).
    Instead, as discussed at length above, they await final decisions
    following "administrative processing." The Government's invocation
    of Golf and Charlie serves only to highlight the contrast between
    their final, terrorism-related refusals and the other Plaintiffs'
    indefinite wait for the end of the SIV process.
    By consigning applicants to "administrative processing," the
    Government           endeavored       to     enjoy    the        benefits     of     consular
    nonreviewability,           which is explained immediately below,                    without
    having     to     report     to    Congress         that    it    has    denied      the    SIV
    applications of many Iraqis and Afghans who supported the United
    States' military efforts in their countries. The applications have
    either been finally denied or they are still working their way
    through the 14 steps the Government requires to be completed. The
    Government       cannot     have   it      both ways.       For    the   reasons      already
    stated, the Court concludes that the SIV applications of Ronaldo,
    Foxtrot,        India,      Juliet,        Alice,    Hotel,       and    Lima      remain    in
    "administrative processing," and have not been finally refused.
    -44-
    b.     Consular Nonreviewability
    In its seminal case on consular nonreviewability, our Court
    of Appeals explained the doctrine as follows:
    In view of the political nature of visa determinations
    and of the lack of any statute expressly authorizing
    judicial review of consular officers' actions, courts
    have applied what has become known as the doctrine of
    consular nonreviewability. The doctrine holds that a
    consular official's decision to issue or withhold a visa
    is not subject to judicial review, at least unless
    Congress says otherwise.
    Saavedra Bruno, 
    197 F.3d at 1159
    . In an earlier, terser statement
    of the doctrine,          the Court noted that "a consular officer could
    make such a decision          [to deny a visa]       without fear of reversal
    since visa decisions are            nonreviewable."     Castaneda-Gonzalez v.
    Immigration & Naturalization Serv., 
    564 F.2d 417
    , 428 n.25                  (D.C.
    Cir. 1977).
    The doctrine preceded passage of the APA and constitutes an
    exception to the presumption of judicial review as contemplated in
    the APA. Saavedra Bruno, 
    197 F.3d at 1160-62
    . It sweeps broadly,
    "appl [ying]   even where it is alleged that the consular officer
    failed to follow regulations, where the applicant challenges the
    validity of the regulations on which the decision was based, or
    where the decision is alleged to have been based on a factual or
    legal error." Van Ravenswaay, 
    613 F. Supp. 2d at 4
     (quoting Chun
    v.   Powell,   
    223 F. Supp. 2d 204
    ,    206   (D.D.C.   2002));   see also
    -45-
    .   ····;   ..
    Gov't's Mot.       at 25-26     (collecting cases showing the breadth of
    unlawful      actions    by    consular     officers     that               are   nevertheless
    unreviewable by the district courts) .
    "[T] he doctrine also applies where a plaintiff attempts to
    circumvent the doctrine by claiming that he is not seeking a review
    of the consular officer's decision, but is challenging some other,
    related aspect of the decision." Malyutin v. Rice, 
    677 F. Supp. 2d 43
    , 46 (D.D.C. 2009), summarily aff'd No. 10-5015, 
    2010 WL 2710451
    (D.C. Cir. July 6, 2010), cert. denied 
    131 S. Ct. 949
     (2011).
    However,   as Plaintiffs point out,            the doctrine of consular
    nonreviewability is not triggered until a                  consular officer has
    made a    decision with respect to a particular visa application.
    Patel    v.   Reno,     
    134 F.3d 929
    ,   932   (9th   Cir.               1997);   see   also
    Maramjaya v. U.S. Citizenship & Immigration Servs., No. CIV.A. 06-
    2158 RCL, 
    2008 WL 9398947
    , at *4 (D.D.C. Mar. 26, 2008)                              (doctrine
    of consular nonreviewability did not apply when "case ha[d]                                 not
    procedurally progressed to the point where consular immunity would
    bar judicial review" because plaintiff did not "challenge the visa
    decision of any consular official" and instead challenged agency
    actions antecedent to such a decision) . 19
    19In per curium affirmances that rely on Saavedra Bruno's statement
    of the doctrine of consular nonreviewability, our Court of Appeals
    has consistently relied on the consulate having reached a coricrete
    decision on the application at issue. See e.g., Malyutin v. Rice,
    No. 10-5015, 
    2010 WL 2710451
    , at *l (D. C. Cir. July 6, 2010)
    -46-
    ... '   ;··
    •.
    The doctrine applies only once a consular officer has made a
    decision because       it protects           the prerogative of                the political
    branches to regulate the manner in which aliens may enter the
    United States. Saavedra Bruno, 
    197 F.3d at 1159
     ("it is . . . not
    within the province of any court, unless expressly authorized by
    law,   to review the determination of the political branch of the
    Government to exclude a given alien."                 (internal quotation marks
    and citation omitted)).           When the Government simply declines to
    provide a decision in the manner provided by Congress, it is not
    exercising      its   prerogative       to    grant   or   deny             applications   but
    failing    to   act   at   all.   
    Id. at 1161
       ("For            []    aliens   [seeking
    admission to the United States] the procedure fixed by Congress is
    deemed to be due process of law." (quoting 1961 U.S.C.C.A.N. 2950,
    2976)) .
    ("Al though appellant asserts he is challenging a denial of his
    request for access to the state court rather than the denial of
    his application for a visa, determining whether appellant is
    entitled to damages from appellees would ultimately . require
    reviewing the decision to deny appellant a visa. That decision is
    clearly unreviewable, however." (emphasis added) ) ; Semiani v.
    United States, 
    575 F.3d 715
    , 715 (D.C. Cir. 2009) ("The district
    court properly dismissed appellant's complaint for lack of subject
    matter jurisdiction because 'a consular official's decision to
    issue or withhold a visa is not subject to judicial review,' unless
    Congress indicates otherwise." (emphasis added)); see also Noble
    v. Ricciardonne, 
    161 F. App'x 22
    , 22-23 (D.C. Cir. 2005); Antonenko
    v. Dep't of State, No. 03-5327, 
    2004 WL 1080159
    , at *1 (D.C. Cir.
    May 13, 2004).                                    .
    -47-
    Confirming that the doctrine is inapplicable in the absence
    of a consular decision, the Court of Appeals for the Ninth Circuit
    has   held       that   visa    applicants        may   challenge       the   Government's
    suspension (rather than adjudication) of their visa applications.
    Patel, 134 F.3d at 932.               Noting that the Patel plaintiffs "[we]re
    challenging         the     consul's        authority        to    suspend     their      visa
    applications, not challenging a decision within the discretion of
    the consul[, the Court held that]                  jurisdiction exists to consider
    whether      the    consulate        has    the   authority        to   suspend     the   visa
    applications."            Id.    (emphasis        added) .        "Normally    a    consular
    official's discretionary decision to grant or deny a visa petition
    is    not    subject       to    judicial      review.       However,       when    the   suit
    challenges the authority of the consul to take or fail to take an
    action      as     opposed      to   a     decision     taken      within     the   consul's
    discretion, jurisdiction exists." Id. at 931-32. 20
    20The Government contends that Patel, 
    134 F.3d 929
     is inapplicable
    because that case involved consideration of a now-outdated
    regulation. Compare 
    22 C.F.R. § 42.81
    (a) (1997) ("When a visa
    application has been properly completed and executed before a
    consular officer in accordance with the provisions of INA and the
    implementing regulations, the consular officer shall either issue
    or refuse the visa."), with 
    22 C.F.R. § 42.81
     (2015) ("When a visa
    application has been properly completed and executed before a
    consular officer in accordance with the provisions of INA and the
    implementing regulations, the consular officer must either issue
    or refuse the visa under INA 212 (a) or INA 221 (g) or other
    applicable law.") .    The Government's argument is simply not
    convincing.
    -48-
    .~·.   •.
    ... ..
    ..   ····;
    District courts outside of the Ninth Circuit have reached the
    same conclusion.        See Am.          Acad.     of Religion v.              Chertoff,       
    463 F. Supp. 2d 400
    , 421 (S.D.N.Y. 2006)                    (" [T]he wide latitude given the
    Executive to grant or deny a visa application                                          does not
    include     the     authority             to     refuse      to        adjudicate          a     visa
    application."); Ceken v.                 Chertoff,    
    536 F. Supp. 2d 211
    ,                 216    (D.
    Conn. 2008)       (following Am. Acad. of Religion, 
    463 F. Supp. 2d at 420-21
    ); see also Raduga USA Corp. v. U.S. Dep't of State, 
    440 F. Supp. 2d 1140
    , 1146 (S.D. Cal. 2005)                      (following Patel, 
    134 F.3d at
    932   and   holding               the   doctrine     of     consular           nonreviewability
    inapplicable where "the consular official has not made any decision
    in four years to date. That is the crux of this case.") . 21
    However, Patel, as the Court reads it, stands for the proposition
    that the doctrine of consular nonreviewability does not apply
    unless a consular official has actually granted or refused an
    application. While revised § 42.81's references to certain
    statutory bases for denial may clarify what the Government
    considers a refusal, they do not undermine the Patel court's
    conclusion that a decision to grant or refuse a visa application
    is a pre-requisite to application of the doctrine.
    21The Government cites several cases from district courts in other
    circuits   that   indicate   that   the   doctrine   of   consular
    nonreviewability would apply even in the absence of a final
    decision. ~, Saleh v. Holder, 
    84 F. Supp. 3d 135
    , 139 (E.D.N.Y.
    2014 (rejecting plaintiffs' argument "that the doctrine does not
    apply to a request that a visa be adjudicated (as opposed to
    granted) within a reasonable period of time" because "courts lack
    subject matter jurisdiction to review the visa-issuing process").
    These cases are unpersuasive given our Court of Appeals'
    characterization of the doctrine as applicable to "a consular
    official's decision to issue or withhold a visa" rather than the
    -49-
    ...
    In short,     the       doctrine holds       only that    "there may be        no
    judicial review of [] decisions to exclude aliens unless Congress
    has expressly authorized this[,]" Saavedra Bruno, 
    197 F.3d at 1162
    (emphasis added and internal quotation marks omitted),                          but does
    not preclude Plaintiffs from challenging the Government's failure
    to    decide,    Patel,         
    134 F.3d at 932
    .   Accordingly,    because     the
    applications of Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and
    Lima remain in "administrative processing" and,                        therefore,    have
    not      been     finally             refused,     the     doctrine      of      consular
    nonreviewability does not bar their claims. See e.g., Maramjaya,
    
    2008 WL 9398947
    , at *4; Patel, 
    134 F.3d at 931-32
    .
    c.         Status of Kilo and Mike's applications
    Plaintiff Kilo's application has not advanced as far as those
    of other Plaintiffs and is not at the "administrative processing"
    (13~)    step. The parties agree that he has not yet received COM
    Approval, although he applied for it on August 25, 2014. Amended
    Compl.    ~   33. The Government contends that Kilo lacks standing to
    bring his claims because, not having submitted an SIV application,
    he cannot claim that he is injured by the Government's failure to
    adjudicate      an   SIV        application.       The    Government    oversimplifies
    Kilo's situation.
    failure to make a decision at all.                    Saavedra Bruno,         
    197 F.3d at 1159
     (emphasis added) .
    -50-
    Kilo has not submitted his full SIV application because he
    must   first     obtain COM Approval           confirming his          "employment and
    faithful and valuable service to the United States Government[.]"
    APAA   §    602(b) (2) (D) (i). Thus,      like the other Plaintiffs, without
    action by the Government, there is nothing Kilo can do to advance
    his application.
    Review of applications for COM Approval is non-discretionary.
    APAA    §    602 (b) (2) (D) (i)   states     that   the    appropriate        Chief    of
    Mission, or her designee, "shall conduct a risk assessment of the
    alien and an independent review of records maintained by the United
    States      Government      or hiring organization or entity to                   confirm
    employment and faithful and valuable service . . . . " Id. (emphasis
    added) .     Moreover,      applicants      denied    COM   Approval       have     appeal
    rights specified in AAPA           §   602 (b) (2) (D) (ii).
    Finally,      the     Government       does    not      raise     its      consular
    nonreviewability argument with respect to Kilo's application.
    Accordingly,         the    Court    concludes       that    Kilo,      like     the
    Plaintiffs mired in "administrative processing," has established
    the Court's jurisdiction to hear his claims for an order compelling
    the Government to act on his application within a reasonable time.
    As to Mike's application, the State Department's Case Status
    Tracker      lists    his   application       as   "at   NVC"      (that    is,    at   the
    Department's National Visa Center). Pls.' Ex. D [Dkt. No. 44-3].
    -51-
    .......
    SIV applications are sent to the NVC at the second stage of the
    SIV approval process, just before the interview stage begins. E.g.,
    Pls.' Ex. Rat 3. Thus, Mike's application appears to simply be
    pending at an earlier stage                  in the process         than those of        the
    Plaintiffs stuck in "administrative processing."
    The Government offers no reasons to treat Mike's application
    differently from the others, and the Court finds no reason to do
    so.
    To summarize,            Alpha,   Bravo,     and Delta have received final
    decisions on their SIV applications,                    and thus,        their claims are
    now moot.    Ronaldo,           Foxtrot,    India,     Juliet,    Alice,    Hotel,    Lima,
    Kilo, and Mike's SIV applications remain pending. These Plaintiffs
    have suffered an injury in fact,                    as they must in order to have
    standing    to pursue            this    litigation,     and     their    claims   are   not
    subject to the doctrine of consular nonreviewability.
    3.      Judicially Manageable Standards to Enforce a Non-
    discretionary Duty
    The Government next contends that Counts 3-6 must be dismissed
    for lack of jurisdiction because Plaintiffs fail                           to identify a
    non-discretionary duty owed them as well as judicially manageable
    standards by which the Court may measure compliance with that duty.
    The APA provides that "within a reasonable time, each agency
    shall proceed to conclude a matter presented to it."                               5 U.S. C.
    §   555(b). Thus,    "[t]he APA imposes a general but nondiscretionary
    -52-
    •.                              •·   .. ._,
    duty upon an administrative agency to pass upon a matter presented
    to it 'within a reasonable time,' 
    5 U.S.C. § 555
    (b), and authorizes
    a reviewing court to 'compel agency action unlawfully withheld or
    unreasonably delayed,'      id.§ 706(1)." Fort Sill Apache Tribe v.
    Nat'l Indian Gaming Comm'n, No. CV 14-958, 
    2015 WL 2203497
    , at *4
    (D.D.C. May 12,    2015)   (citing Mashpee Wampanoag Tribal Council,
    Inc. v. Norton, 
    336 F.3d 1094
    , 1099-1100 (D.C. Cir. 2003)).
    The RCIA and AAPA provide additional guidance,                 instructing
    that Defendants shall process SIV applications within nine months.
    RCIA § 1242 (c) (1);    AAPA §§ 602 (4) (A).   The text of the statutes
    makes clear that the nine-month timeline applies to "all steps"
    under Defendants' control "incidental to the issuance of such [SIV]
    visas[.]" Id. Thus,     the timeline applies to each of the 14 steps
    in the SIV adjudication process identified in the Joint Reports
    that are within Defendants'        control,    including         "administrative
    processing" and "COM Approval." E.g., Pls.' Ex. 0 at 3.
    Simply put,    the APA imposes a duty 22 on Defendants to act
    within a   "reasonable"    time on Plaintiffs'     applications,        and the
    22 The regulations on which the Government relies to bolster its
    argument that Plaintiffs' applications have been denied support
    the conclusion that the Government's duty to decide Plaintiffs'
    applications is non-discretionary. See Gov't's Mot. at 11 ("Upon
    receipt of a proper visa application,       a consular officer
    adjudicating the application 'must either issue or refuse the
    visa.'" (quoting 
    22 C.F.R. § 42.81
    )).
    -53-
    ...
    RCIA and AAPA provide manageable standards (an explicit timeline)
    by which a Court may assess the Government's compliance. Moreover,
    our Court of Appeals has stated that:
    [T] he time agencies take to make decisions must be
    governed by a rule of reason [and] 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[.]"
    Telecommunications Research & Action Ctr. v. F.C.C., 
    750 F.2d 70
    ,
    80     (D.C.   Cir.   1984).   The   RCIA    and AAPA provide         just   such   a
    "timetable or other indication of speed[.]" 
    Id.
     23
    Finally, the Government actually acknowledges that its duty
    to eventually reach a decision on pending SIV applications is non-
    discretionary.        Gov't's Mot.    at 36      ("[T]he only nondiscretionary
    duty    Defendants      owed   was   to   make    a   decision   on   the    pending
    23 Our Court of Appeals has recommended that courts consider the
    following complete list of factors: "(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." Telecommunications Research & Action Ctr., 
    750 F.2d at 80
     (internal quotation marks and citations omitted).
    -54-
    applications of Plaintiffs              . to issue or refuse their visas,
    which they did.").
    Nevertheless, the Government contends that the pace at which
    it adjudicates SIV applications is entirely discretionary, citing
    Beshir v. Holder, 
    10 F. Supp. 3d 165
     (D.D.C. 2014) for support.
    Admittedly,        Beshir      takes     an        expansive         view    of        the
    Government's power to decide certain immigration applications on
    its own timeline. Beshir, 10 F. Supp. 3d at 174 (holding that "the
    pace of adjudication is discretionary"). However, the Beshir court
    based its conclusion on factors which are not present in this case.
    First,   the     Beshir    court      relied       on     " [t] he    absence          of     a
    congressionally-imposed          deadline   or      timeframe        to    complete         the
    adjudication of       [immigrant]    adjustment          [of status]        applications
    [as] support[]       [for] the conclusion that the pace of adjudication
    is discretionary and thus not reviewable [.]" Id. at 176.                          In the
    case at bar, Congress has provided a clear nine-month timeline for
    the adjudication of SIV applications.
    Second      Beshir    relied      on     relevant         statutory          language
    permitting the Government to consider certain applications "in the
    Secretary      [of   Homeland     Security]        or    the   Attorney          General's
    discretion and under such regulations as the Secretary or Attorney
    General may prescribe." Id. at 173             (quoting 
    8 U.S.C. § 1159
    (b)).
    The Government points to no similarly explicit grants of discretion
    -55-
    applicable to Plaintiffs' applications. Thus, the Beshir Court's
    reasoning is wholly inapplicable. 24
    The Government also contends that the pace of adjudication of
    SIV applications is discretionary because Congress provided for
    the possibility that "national security concerns" might cause some
    applications to require additional time.                  See RCIA    §   1242 (c) (2)
    ("Nothing in this section [which includes the nine-month timeline
    quoted above]      shall be construed to limit the ability of                   [the]
    Secretary     [of State and the Secretary of Homeland Security]                     to
    take longer than 9 months to complete those steps incidental to
    the   issuance     of     such   visas     in     high-risk   cases       for   which
    satisfaction of      national      security concerns        requires      additional
    time."); see also AAPA       §   602(4)(B)      (same).
    As    the   Government     reads    them,     the   statutes'       mention   of
    national security returns absolute discretion to the Government's
    hands.     Gov't's Mot.    at 34    ("But the nine-month timeline is not
    24 The Government points to Orlov v. Howard in support of its
    argument   that   the   speed  of   application    adjudication   is
    discretionary, but that case also relies on the absence of a
    Congressionally-prescribed timeline,     and   therefore   is   also
    inapplicable. Orlov v. Howard, 
    523 F. Supp. 2d 30
    , 35 (D.D.C. 2007)
    ("In the absence of statutorily prescribed time limitations or
    statutory factors to guide users in crafting regulations for the
    adjustment process, it is difficult to determine how the pace of
    processing   an   application  could   be    anything   other   than
    discretionary.").
    -56-
    .• ..    "'
    ...
    -
    . ,~·.
    binding at any stage because the statute contemplates national
    security       delays,                 which   are     inextricably                intertwined      with
    discretionary         consular             decisions.       Delays       related        to      national
    security can affect processing and timing at any stage, rendering
    the nine-month period merely aspirational.").
    The RCIA and AAPA follow the same structure. Both statutes
    introduce the nine-month timeline and define its application in
    one paragraph and then introduce the safety valve for "high-risk
    cases"    in the very next paragraph.                        RCIA    §     1242 (c)      and AAPA       §
    602 (b) (4).   The statute sets                  forth that additional time may be
    permitted when national security issues arise. Obviously, Congress
    would not have adopted this rule-and-exception structure if it
    expected the exception to apply in every case. Moreover, the words
    "high-risk tases" indicate a distinction between the                                     ru~-of-the-
    mill case,      which must be adjudicated within nine months,                                     and a
    subset of cases presenting "national security concerns" that do
    not arise      in the             typical      application.     RCIA           §    1242 (c);    AAPA   §
    602(b) (4).     The    Government's              reading      would        allow        the     national
    security exception to swallow the nine-month rule in its entirety.
    Moreover,       the presence of                  the national            security exception
    does not eliminate the judicially-manageable standards described
    above. If the Government credibly claimed that a particular case
    was      "high-risk"               because      it      presented          "national            security
    -57-
    concerns[,]"             RCIA    §    1242(c)(2);         AAPA   §     602(b)(4)(B),          a    court
    should,        of     course,         appropriately           defer        to    the   Government's
    expertise in the area of foreign policy and national security.
    In this case, the Government has not even attempted to show
    that Plaintiffs' applications fall into the "high-risk" exception.
    To    be     sure,       the    Government        has     stated      that      national      security
    concerns are present in this case, e.g., Gov't's Reply ("Nor does
    anything in [a particular case that Plaintiffs cite] address the
    direct question of national security interests,                                     and terrorism-
    related       considerations,              that    are    unmistakably present                in this
    case."), but the Government has never specified in any way what
    those concerns are.
    The Government has suggested that because the applications of
    Charlie and Golf,               named as Plaintiffs in the i.nitial Complaint,
    were refused on terrorism-related grounds, the current Plaintiffs'
    applications are also suspect. Gov't's Reply at 1. However,                                            the
    Government never even describes what relationship Charlie and Golf
    have to the other Plaintiffs that would cause such concern.
    It    is     implied         by    the    Government         that       "national     security
    concerns,"          as    the    term is used in RCIA                  §    1242(c)(2)        and AAPA
    §    602(b) (4) (B), are present in all SIV applications by Iraqis and
    Afghan       citizens.               But   such    an     interpretation           conflicts           with
    Congress's           statutory         design. -        The    RCIA        applies     only       to    SIV
    -58-
    ~.:   ..                                               ...
    applications by Iraqis,                                and the AA.PA,     likewise,              applies only to
    applications by Afghans. If Iraqi or Afghan citizenship were enough
    to   render      an application                            "high-risk,"       the       nine-month             timeline
    would, again, be rendered a dead letter.
    For      all         of              these          reasons,    the     Court              concludes          that
    adjudication of Plaintiffs' SIV applications within a reasonable
    time is non-discretionary,                                  that judicially manageable standards
    exist to measure the Government's performance of its duty,                                                            and
    that    the     national                    security exception does                 not          undermine          these
    conclusions.            Accordingly,                         the      Court     has              subject           matter
    jurisdiction to hear Plaintiffs' claims.
    4.       The APA and the Mandamus Act
    The APA, 
    5 U.S.C. § 706
    (1), authorizes the federal courts to
    "compel        agency            action                  unlawfully     withheld                or     unreasonably
    delayed." The Supreme Court explained that                                          §     706 (1)       "empowers a
    court only 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 All.,
    
    542 U.S. 55
    ,     64    (2004)                    (quoting Attorney General's Manual on the
    Administrative Procedure Act 108 (1947)).
    Mandamus is "a drastic and extraordinary remedy reserved for
    really extraordinary causes." Cheney v. U.S. Dist. Court for D.C.,
    5 4 2 U. S .   367 ,        380             ( 2 0 O4 ) .   The Mandamus Act ,                 2 8 U. S . C .   §    13 61 ,
    -59-
    ...
    provides district courts with jurisdiction to hear "action[s]             in
    the nature of mandamus to compel an officer or employee of the
    United States or any agency thereof to perform a duty owed to the
    plaintiff." Id. Courts may provide relief under the Act only when
    the plaintiff shows:    (1)   the defendant has a clear duty to act;
    (2)   the plaintiff has a clear right to the relief he is seeking;
    and (3) the plaintiff has no other adequate remedy available. See
    Fornaro v. James, 
    416 F.3d 63
    , 69 (D.C. Cir. 2005).
    The Government contends that Plaintiffs have failed to state
    a   claim under either the APA or the Mandamus Act             for   reasons
    already rejected above: 1) that Plaintiffs' SIV applications have
    already been finally refused;      2)     that the doctrine of consular
    nonreviewability bars their claims;         and 3)    that the nine-month
    timelines provided in the RCIA and AAPA are discretionary.               See
    Gov't's Mot. at 27-36. The Government raised all these concerns in
    the context of its jurisdictional arguments, and in the sections
    above, the Court explains why none of them have merit: Plaintiffs'
    SIV applications await further action by the Government and have
    not been finally refused, see supra sections III.B.2.a. & c.; the
    doctrine    of   consular     nonreviewability       is   inapplicable    to
    Plaintiffs' claims, see supra section III.B.2.b.; and the duty to
    adjudicate Plaintiffs' applications within a reasonably period, as
    -60-
    informed by the nine-month timelines in the RCIA and AAPA is non-
    discretionary, see supra section III.B.3.
    The Government also contends                     that Plaintiffs'         claims must
    fail because any delays in processing their applications are "based
    on their own failures to           sub~it       all required to meet their burden
    to demonstrate visa eligibility, at various stages of the process."
    Gov't's       Mot.    at   34-35   (citing          Dybdahl    Deel.).        This   factual
    assertion       directly     conflicts      with       facts    pled     in    Plaintiffs'
    Amended Complaint. See e.g. id.                 ~    7 ("Following the grant of COM
    Approval, each of the COM-Approved Plaintiffs duly completed all
    other steps required of them by the SIV application process.") .
    The Court cannot consider the Government's conflicting factual
    assertion in a motion to dismiss for failure to state a claim.
    Aktieselskabet,        
    525 F. 3d at 17
                  (a "court deciding a motion to
    dismiss must not make any judgment about the probability of the
    plaintiffs' success[, and]                      . must assume all the allegations
    in the complaint are true (even if doubtful in fact)").
    For      these    reasons,    Plaintiffs          have    properly stated         their
    claims under the APA, 
    5 U.S.C. § 706
    (1), and the Mandamus Act, 28
    u.s.c.    §   1361.
    '
    c.        Counts 1 & 2: Failure to Protect
    RCIA      §   1244(e) provides that "[t]he Secretary of State,                       in
    consultation with the heads of other relevant Federal agencies,
    -61-
    \~   ....
    .   .     .;
    shall make a reasonable effort to provide an alien described in
    this section who is applying for a special immigrant visa with
    protection or the immediate removal from Iraq,                               if possible,       of
    such alien if the Secretary determines after consultation that
    such alien is in imminent danger." AAPA § 602 (b) ( 6) contains nearly
    identical language with respect to Afghan SIV applicants.
    Plaintiffs contend that this passage gives rise to two related
    duties: " ( 1). [to] consult with the heads of other relevant Federal
    agencies to assess whether the threats faced by Plaintiffs are
    imminent;    and,     if          so,     (2)   make a    reasonable effort to provide
    protection       or   the              immediate   removal      of   Plaintiffs        from   such
    threats,    if    possible."               Pls.'   Opp'n at       28.     Counts   1   and    2 of
    Plaintiffs' Amended Complaint allege that Defendants have failed
    to fulfil these duties. Am. Compl.                        ``   205-218.
    As already discussed,                      the APA empowers reviewing courts to
    "compel     agency         action           unlawfully         withheld     or     unreasonably
    delayed[.]" 
    5 U.S.C. § 706
    (1) . 2 s Citing§ 706, Plaintiffs ask the
    25 Plaintiffs' Amended Complaint also cites the APA' s grant of
    judicial authority "[to] hold unlawful and set aside agency action,
    findings, and conclusions found to be . . . without observance of
    procedure required by law." Amended Compl. `` 209, 216 (quoting
    
    5 U.S.C. § 706
    (2)). However, Plaintiffs' Opposition relies only on
    § 706(1) to rebut the Government's arguments in favor of dismissing
    Counts 1 and 2.
    -62-
    Court to compel Defendants to undertake the duties described in
    RCIA   §   1244 (e) and AAPA   §   602 (b) (6).
    The    Government      contends       that     this   Court    is     without
    jurisdiction to hear Claims 1 and 2. 26 The Court agrees for the
    following reasons.
    "[A]   claim under section 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."    People   for   the    Ethical
    Treatment of Animals v. U.S. Dep't of Agric., 
    797 F.3d 1087
    , 1098
    (D.C. Cir. 2015)       (emphasis and brackets omitted)           (quoting Norton
    v. S. Utah Wilderness Alliance, 
    542 U.S. 55
    , 64 (2004)). Moreover,
    the APA expressly precludes judicial review of agency action that
    is "committed to agency discretion by law." 5 U.S.C.                  §   70l(a) (2).
    Agency action is committed to agency discretion by law when "the
    statute is drawn so that a court would have no meaningful standard
    26 The Government also contends -- for the first time in its Reply
    brief -- that Plaintiffs lack standing to assert claims under RCIA
    § 1244 (e) and AAPA § 602 (b) (6) because these provisions contemplate
    individuals with unadjudicated SIV applications, and Plaintiffs'
    applications have been finally refused. Ordinarily, an argument
    not raised in an opening brief is forfeited, Am. Wildlands v.
    Kempthorne, 
    530 F.3d 991
    , 1001 (D.C. Cir. 2008), but because
    Plaintiffs'    lack of standing would deprive this Court of
    jurisdiction, the Court must consider the question. Fed. R. Civ.
    P. 12{h) (3); Henderson ex rel. Henderson v. Shinseki, 
    562 U.S. 428
    , 435 (2011). However, the question is easily answered: As the
    Court concludes below, Plaintiffs' applications have not been
    finally adjudicated,      so the Government's late challenge to
    Plaintiffs' standing fails.
    -63-
    against which to judge the agency's exercise of discretion [.]"
    Sierra Club v. Jackson, 
    648 F.3d 848
    , 855 (D.C. Cir. 2011)                          (quoting
    Heckler v.   Chaney,       
    470 U.S. 821
    ,    830    (1984)).      If no "judicially
    manageable standard" exists by which to judge the agency's action,
    meaningful judicial review is unavailable under the APA. 
    Id.
    The statutory duties that Plaintiffs cite are of the type
    described in Sierra Club. Plaintiffs point to no standards by which
    the Court could assess whether Defendants have adequately assessed
    the dangers that     P~aintiffs         face.
    The language of RCIA         §    1244(e) and AAPA         §   602(b) (6) strongly
    indicates    that    significant         discretion        has       been    left    to   the
    Secretary of State as to how to carry out his mandate. Under the
    statutes the Secretary "shall make a reasonable effort" to provide
    protection or removal         to SIV applicants.               Id.    What efforts are
    reasonable will depend upon "complex concerns involving security
    and   diplomacy"     far    beyond      the     expertise      of    the    Court         but
    squarely    within    that    of       the    Secretary.       Legal       Assistance     for
    Vietnamese Asylum Seekers v. Dep't of State,                         Bureau of Consular
    Affairs,    
    104 F.3d 1349
    ,   1353         (D.C.   Cir.     1997) .· In· addition,
    Plaintiffs fail to point to any standards by which the Court may
    assess whether Plaintiffs are in "imminent danger" or whether the
    Secretary has adequately acted "in consultation with the heads of
    -64-
    . -..:...
    other        relevant        Federal   agencies."     RCIA           §      1245 (e);     AAPA
    §   602 (b) (6)
    True,     the RCIA and AAPA both use the word "shall,"                           which
    generally indicates an "affirmative command." See Nat'l Ass'n of
    Home Builders v. Defenders of Wildlife, 
    551 U.S. 644
    , 661 (2007)
    ("The word 'shall' generally indicates a command that admits of no
    discretion on the part of the person instructed to carry out the
    directive"        (internal citations omitted)). But Congress surrounded
    "shall" with a profusion of other words that connote discretion:
    The Secretary .    . shall make a reasonable effort to
    provide an alien described in this section who is
    applying for a special immigrant visa with protection or
    the immediate removal from Iraq, if possible, of such
    alien if the Secretary determines after consultation
    that such alien is in imminent danger.
    RCIA    §   1245(e)    (emphasis added); accord AAPA         §           602(b) (6).
    In order to enforce the statute's command,                         the Court would
    have        to    (1) assess      whether     the   Secretary's               efforts      were
    "reasonable",         ( 2)   decide whether any efforts other than removal
    would       provide     sufficient     "protection",     (3) determine                  whether
    protection or removal were "possible," and                   (4)          pass judgment on
    the Secretary's final "determin[ation]" about the imminence of any
    danger facing a particular SIV applicant. Id. Plaintiff points to
    no standards by which the Court might assess these decisions.
    -65-
    Plaintiffs also argue that,           at the very least,          the duty to
    consult is a        clear enough statutory duty to be susceptible to
    judicial     review and note         that    "there    is   no   evidence- -or even
    argument--that the State Department has ever consulted with the
    heads of other relevant Federal agencies regarding the nature of
    the threats faced by Plaintiffs or has ever provided for protection
    or removal following such consultations." Pls.' Opp'n at 31 (both
    instances of emphasis in original) .
    However,    even if the Secretary's duty to consult were non-
    discretionary, Plaintiffs would lack standing to enforce it. That
    is because "the omission of a procedural requirement does not, by
    itself,     give    a    party    standing    to    sue."   Ctr.    for    Biological
    Diversity v. U.S. Dep't of Interior, 
    563 F.3d 466
    , 479 (D.C. Cir.
    2009)    (citing Fla. Audubon Soc'y v. Bentsen, 
    94 F.3d 658
    , 664 (D.C.
    Cir. 1996)). Rather,        "a procedural-rights plaintiff must show not
    only      that     the    defendant's        acts     omitted      some    procedural
    requirement, but also that it is substantially probable that the
    procedural       breach    will     cause     the   essential       injury    to   the
    plaintiff's own interest." 
    Id.
     Plaintiffs have not contended that
    the Secretary of State's alleged failure to consult led to his
    failure to protect or remove them from Iraq or Afghanistan. Indeed,
    Plaintiffs could not make such an allegation because, as the Court
    notes above,       the determinations that follow consultation                 (e.g.,
    -66-
    whether and how to protect or remove SIV applicants from their
    countries) are themselves discretionary.
    In short,    under RCIA    §   1244 (e)   and AAPA   §   602 (b) (6),   "the
    agency is entrusted by a broadly worded statute with balancing
    complex     concerns   involving     security     and   diplomacy"     that   are
    "peculiarly with       the   agency's    expertise [.]"    Vietnamese     Asylum
    Seekers, 
    104 F.3d at 1353
    . Counts 1 and 2 of Plaintiffs' Amended
    Complaint must be dismissed.
    IV.   CONCLUSION
    For   the   foregoing   reasons,       Plaintiffs'   Motion    to   File   a
    Supplemental Declaration shall be granted,              and the Government's
    Motion to Dismiss shall be granted with respect to Counts 1 & 2
    and denied with respect to Counts 3-6              (except insofar as those
    claims relate to Alpha, Bravo, and Delta). Accordingly, Counts 1
    & 2 shall be dismissed and Alpha, Bravo, and Delta's claims shall
    be dismissed as moot.
    January 28, 2016                             Gla~s``,k~
    United States District Judge
    Copies to: attorneys on record via ECF
    -67-
    

Document Info

Docket Number: Civil Action No. 2015-0300

Citation Numbers: 168 F. Supp. 3d 268, 2016 WL 927142

Judges: Judge Gladys Kessler

Filed Date: 3/7/2016

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (26)

Chun v. Powell , 223 F. Supp. 2d 204 ( 2002 )

United States v. James Daniel Good Real Property , 114 S. Ct. 492 ( 1993 )

Legal Assistance for Vietnamese Asylum Seekers v. ... , 104 F.3d 1349 ( 1997 )

United States v. Gaubert , 111 S. Ct. 1267 ( 1991 )

Norton v. Southern Utah Wilderness Alliance , 124 S. Ct. 2373 ( 2004 )

MALYUTIN v. Rice , 677 F. Supp. 2d 43 ( 2009 )

Nazario Castaneda-Gonzalez v. Immigration and ... , 564 F.2d 417 ( 1977 )

Fornaro, Carmine v. James, Kay Coles , 416 F.3d 63 ( 2005 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Kerry v. Din , 135 S. Ct. 2128 ( 2015 )

Van Ravenswaay v. Napolitano , 613 F. Supp. 2d 1 ( 2009 )

Orlov v. Howard , 523 F. Supp. 2d 30 ( 2007 )

American Academy of Religion v. Chertoff , 42 A.L.R. Fed. 2d 607 ( 2006 )

Ceken v. Chertoff , 536 F. Supp. 2d 211 ( 2008 )

Center for Biological Diversity v. United States Department ... , 563 F.3d 466 ( 2009 )

Aktieselskabet Af 21. November 2001 v. Fame Jeans Inc. , 525 F.3d 8 ( 2008 )

telecommunications-research-and-action-center-v-federal-communications , 750 F.2d 70 ( 1984 )

Henderson v. Shinseki , 131 S. Ct. 1197 ( 2011 )

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