Hamed Almaqrami v. Michael Pompeo

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2018 Decided August 13, 2019
No. 18-5156
HAMED SUFYAN OTHMAN ALMAQRAMI, ET AL.,
APPELLANTS
v.
MICHAEL R. POMPEO, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF STATE AND JOHN DOES, #1-#50, IN THEIR
OFFICIAL CAPACITY AS THE CONSULAR OFFICIALS RESPONSIBLE
FOR ISSUING DIVERSITY VISAS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01533)
Benjamin M. Eidelson argued the cause for appellants.
With him on the briefs were Matthew E. Price, Max J. Minzner,
Yolanda Rondon, Arthur B. Spitzer, and Scott Michelman.
Scott G. Stewart, Attorney, U.S. Department of Justice,
argued the cause for appellees. On the brief were Gisela A.
Westwater and Erez Reuveni, Assistant Directors, and Joshua
S. Press, Trial Attorney.
Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Plaintiffs were offered the
chance to apply for a select number of “diversity visas.” The
government never granted them visas, and the statutory
deadline to do so has now passed. But this case is not moot
because whether the district court retains the authority to award
plaintiffs relief is a merits question. We reverse the district
court’s decision to the contrary.
I
A
In general, a citizen of a foreign country who wishes to
come to the United States must first obtain a U.S. visa, which
is placed in the traveler’s passport. A visa does not guarantee
entry into the United States; it only confers the right to travel
to a port of entry and apply for admission to enter the country.
8 U.S.C. § 1201(h). Failure to satisfy certain requirements in
the Immigration and Nationality Act (INA) will render an alien
ineligible for a visa and ineligible for entry. For example, an
alien cannot receive a visa if she has “a communicable disease
of public health significance,” and if she contracts such a
disease after receiving her visa, she will be denied entry. 8
U.S.C. § 1182(a)(1)(A). Other parts of the INA apply to only
visas or entry. The Secretary of State may, for instance, decline
to issue a visa to an alien who abused a position of power to
expropriate American property, id. § 1182d, and the Attorney
General may decide that certain aliens must pay bonds before
entering the country, id. § 1183.
Each fiscal year, the State Department grants
approximately 50,000 diversity immigrant visas to individuals
3
from countries underrepresented in the immigration process,
which allow recipients who are granted admission to enter the
country as lawful permanent residents who may live and work
here indefinitely. See 8 U.S.C. §§ 1151(e), 1153(c)(1); Pls.’ Br.
4 & n.1. 1 The process by which the State Department awards
diversity visas is competitive and complicated. An applicant
must first apply for and win the diversity visa “lottery.” Pls.’
Br. 5; see 8 U.S.C. § 1153(e); 22 C.F.R. § 42.33(b)-(c). A
lottery winner or “selectee” must submit an application and
various documents to be eligible for a visa number—an
administrative device used by the State Department to ensure
that it does not grant more than 50,000 visas per year. Gov’t
Br. 9-10; see 8 U.S.C. § 1202(b); 22 C.F.R. §§ 42.33(f)-(g),
42.61-67. A selectee is eligible to receive a visa number only
during the fiscal year in which he applied and was selected
(“selection FY”). 8 U.S.C. § 1153(e)(2); 22 C.F.R. § 42.33(f).
Visa number in hand, the selectee may schedule a consular
interview, and if he meets the criteria to obtain one, the State
Department “shall” issue him a diversity visa. 8 U.S.C.
§ 1153(c), (e)(1); 22 C.F.R. §§ 40.6, 42.81(a); see 8 U.S.C.
§ 1202(h). Consulates return unused visa numbers to the State
Department at the end of each month so that they may be
reassigned, but the State Department stops granting visa
numbers altogether once it projects that it will issue all
available visas to existing visa number holders. Gov’t Br. 9-10.
Because the diversity visa program restarts each fiscal year,
consular officers may not issue diversity visas after midnight
on September 30 of the selection FY. 8 U.S.C.
1
A diversity visa applicant who is already living in the United
States in another legal status would instead apply to U.S. Citizenship
and Immigration Services (USCIS) for adjustment of status. If
successful, he receives a lawful permanent resident identification
card. There is no need to satisfy the entry requirements. We use the
term “diversity visas” to describe both processes.
4
§§ 1153(c)(1), 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(a)(1),
(d); see 31 U.S.C. § 1102.
B
In March 2017, President Trump invoked his authority
under 8 U.S.C. § 1182(f) to “suspend the entry of all aliens or
any class of aliens as . . . he may deem to be appropriate” and
issued the second iteration of his “travel ban”—an Executive
Order that temporarily prohibited nationals of specific
countries from entering the United States, subject to
exemptions and waivers. Exec. Order No. 13,780 (“EO-2”),
Protecting the Nation From Foreign Terrorist Entry Into the
United States §§ 2(c), 3(c), 12(e), 82 Fed. Reg. 13,209, 13,213-
15, 13,218 (2017); see Trump v. Hawaii, 138 S. Ct. 2392, 2437
(2018). Several district courts issued preliminary injunctions
preventing the government from enforcing EO-2’s entry
restriction, which were largely affirmed by the courts of
appeals. See Hawaii, 138 S. Ct. at 2437. But in June 2017, the
Supreme Court held that EO-2’s entry restriction could take
effect while the Court considered the appeals of the preliminary
injunctions, except as to foreign nationals with “a credible
claim of a bona fide relationship with a person or entity in the
United States.” Trump v. Int’l Refugee Assistance Project
(IRAP I), 137 S. Ct. 2080, 2088 (2017) (per curiam).
Two days after the Supreme Court’s ruling, the State
Department issued a “Guidance Memo” instructing consular
officers reviewing diversity visa applications about how EO-
2’s entry ban affected visa eligibility: A consular officer should
first determine whether the selectee “is eligible for the [visa],
without regard to [EO-2].” J.A. 17. If so, and if he is from a
country subject to EO-2, the officer must evaluate whether the
selectee qualifies for an exemption or waiver, or can establish
5
a bona fide relationship with the United States. If he cannot, his
visa will be refused.
C
Plaintiffs won the 2017 diversity visa lottery but were
denied visas pursuant to the Guidance Memo. Consular officers
interviewed plaintiffs and, in accordance with the Memo,
determined that they would have been eligible for diversity
visas but for the issuance of EO-2. However, because plaintiffs
were from Iran and Yemen—countries subject to the entry
ban—and could not qualify for exemptions or waivers or
satisfy IRAP I’s bona fide relationship requirement, the
consular officers determined that plaintiffs were “not exempt
from [EO-2’s] suspension of entry” and denied them visas. See
J.A. 17.
Plaintiffs filed suit in the U.S. District Court for the
District of Columbia in August 2017. The amended complaint
alleges that the Guidance Memo directed consular officers to
make visa determinations on the basis of nationality in
violation of 8 U.S.C. § 1152(a)(1)(A). It further alleges that
§ 1182(f) only authorized the President to restrict entry, so by
relying on EO-2 to deny plaintiffs visas, consular officers
violated their duty under the INA to issue visas to all statutorily
eligible applicants. Among other relief, plaintiffs asked the
district court to “enjoin[] the State Department from
implementing the policy set forth in [the Guidance Memo]”
and order “consular officers to process [p]laintiffs’ applications
pursuant to the [INA].” P.K. v. Tillerson, 302 F. Supp. 3d 1, 6
(D.D.C. 2017).
The next month, the State Department informed the district
court that it was on track to issue all 50,000 visas allocated for
FY 2017 prior to October 1 and would no longer process
6
additional requests for visa numbers made during FY 2017.
The government argued that this development “counsel[ed]
against” an order that it give plaintiffs visa numbers or process
their applications. J.A. 33-34. Plaintiffs presented the district
court with several options. From past practice, it appeared that
the State Department would not reallocate visa numbers
returned in September. Instead of “wast[ing]” those numbers,
plaintiffs suggested that the court could order the government
to reassign them to plaintiffs. J.A. 46. Recognizing that the
district court might have reservations about issuing such a
ruling while the Supreme Court was reviewing the orders
enjoining EO-2’s entry restriction as unlawful, plaintiffs
explained that the district court could instead “maintain the
status quo” by ordering the State Department to “reserve any
unused visa numbers until” IRAP I was “resolved.” Id.
On September 24, 2017, EO-2 expired and was replaced
by the third iteration of President Trump’s travel ban, the
“Proclamation.” Proclamation No. 9,645, Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry Into
the United States by Terrorists or Other Public-Safety Threats,
82 Fed. Reg. 45,161 (2017); see P.K., 302 F. Supp. 3d at 3-4.
Although the Proclamation modified the scope and duration of
EO-2’s entry restrictions, the restrictions on Iranians and
Yemenis remained largely the same.
Five days later, on September 29—one day before the end
of FY 2017—the district court issued its first ruling. Plaintiffs
had argued that the litigation over EO-2’s entry restrictions was
“irrelevant” to their case about visas, J.A. 46, but the district
court concluded otherwise. Relying on language equating visas
and entry in the courts of appeals decisions affirming the
injunctions of EO-2 and the nature of the relief sought in those
cases, the district court determined that the Supreme Court’s
order staying challenges to EO-2’s entry ban also necessarily
7
stayed challenges to EO-2’s effect on visas. P.K., 302 F. Supp.
3d at 7-8 & n.7. But in the midst of the uncertainty about the
strength and status of the legal challenges before the Supreme
Court, and with only one day before the end of plaintiffs’
selection FY, the district court sought to preserve the status quo
and thus keep alive the possibility that plaintiffs could yet
receive their visas. The court therefore ordered the State
Department to report the number of unused visa numbers for
FY 2017 and “hold those visa numbers to process [p]laintiffs’
visa applications in the event the Supreme Court finds [EO-2]
to be unlawful.” J.A. 112 (“September 29 Order”). The
government has since advised that 27,241 diversity visa
numbers were returned unused and that it issued 49,976
diversity visas in FY 2017—24 shy of the statutory target. This
appeal primarily concerns whether the district court may order
the government to keep those unused visas available in the
event these plaintiffs eventually prevail on their claims.
In October 2017, the Supreme Court explained that
challenges to the expired entry restrictions of EO-2 were moot.
Trump v. Hawaii, 138 S. Ct. 377, 377 (2017); Trump v. IRAP,
138 S. Ct. 353, 353 (2017). That same month, the government
filed a motion to dismiss this case as moot, arguing that once
FY 2017 ended, the court lacked the power to order the
government to issue plaintiffs FY 2017 diversity visas. The
district court rejected that theory, but agreed that the case was
moot because the Guidance Memo was issued to implement the
now-expired EO-2 and the September 29 Order had “expressly
predicated” any future order requiring the government to
process plaintiffs’ applications upon “the Supreme Court
find[ing] [EO-2] to be unlawful,” which it had not done.
Almaqrami v. Tillerson, 304 F. Supp. 3d 1, 7-8 (D.D.C. 2018)
(first alteration in original) (internal quotation marks omitted).
Plaintiffs appeal.
8
While this litigation was ongoing, other plaintiffs
challenged the Proclamation’s entry ban on grounds similar to
those argued to enjoin EO-2. Once again, district courts
enjoined that ban, and the courts of appeals affirmed. In June
2018, the Supreme Court held that those plaintiffs were not
likely to show that the Proclamation was unlawful. Hawaii, 138
S. Ct. 2392.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our
review is de novo, though we accept as true the facts plaintiffs
have alleged. Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C. Cir.
2004).
A federal court’s jurisdiction is limited to “Cases or
Controversies.” U.S. Const. art. III, § 2, cl. 1. A lawsuit
becomes moot—and is therefore no longer a “Case” or
“Controversy”—“when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). But a case
becomes moot only if, assuming the plaintiff prevails, “it is
impossible for a court to grant [her] any effectual relief
whatever.” Id. (quoting Knox v. Serv. Emps. Int’l Union, 567
U.S. 298, 307 (2012)). We must assume that the plaintiff will
“prevail” unless her argument that the relief sought is legally
available and that she is entitled to it is “so implausible that it
is insufficient to preserve jurisdiction.” Id. at 174. And if there
is “any chance” that relief will be effective in securing what
she seeks, she has an interest in obtaining it. Mission Prod.
Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660
(2019); see Chafin, 568 U.S. at 175-76 (“[T]he fact that a
defendant is insolvent does not moot a claim for damages.”).
9
Under this “demanding standard,” plaintiffs’ claims are
not moot. See Tempnology, 139 S. Ct. at 1660. They seek a
court order instructing the government to stop implementing
the Guidance Memo, process their visa applications, and issue
them diversity visas. Neither their claim that such relief is
legally available nor their claim that they are entitled to that
relief is so implausible as to deprive the district court of
jurisdiction. And there is some chance that this relief will be
effective at securing their immigration to the United States.
A
The parties dispute whether the district court may lawfully
take steps to grant plaintiffs relief, notwithstanding the fact that
FY 2017 is over. This question goes to the merits, and because
plaintiffs’ argument that the district court may do so is not “so
implausible that it is insufficient to preserve jurisdiction,” the
case is not moot. Chafin, 568 U.S. at 174 (explaining that an
argument about “the legal availability of a certain kind of
relief” is a merits question).
Courts are often asked to intervene in disputes over
diversity visas, and the end of the selection FY does often
render those cases moot. In a straightforward case, a plaintiff
who believed the government had erroneously denied her visa
or was not processing her application quickly enough would
file suit well in advance of the end of the selection FY. If the
court agreed, it would order the government to correct the error,
the government would timely comply, and the plaintiff would
receive her visa before the selection FY ended. More often, the
plaintiff files suit after the selection FY has ended. Because
diversity visas expire when the selection FY ends, 8 U.S.C.
§§ 1153(c)(1), 1154(a)(1)(I)(ii)(II), that plaintiff does not have
a statutory right to the requested visa and the government does
not have a duty to issue her one. Courts faced with this situation
10
have dismissed these lawsuits as moot. Zixiang Li v. Kerry, 710
F.3d 995 (9th Cir. 2013); Mohamed v. Gonzales, 436 F.3d 79
(2d Cir. 2006) (per curiam); Nyaga v. Ashcroft, 323 F.3d 906
(11th Cir. 2003) (per curiam). But see Coraggioso v. Ashcroft,
355 F.3d 730 (3d Cir. 2004) (dismissing suit on the merits);
Iddir v. INS, 301 F.3d 492 (7th Cir. 2002) (same).
Sometimes a plaintiff files suit before the selection FY
ends but the court fails to act on that request until after
September 30, at which point the State Department lacks
authority to issue a diversity visa sought in the prior fiscal year.
Courts have likewise dismissed these cases as moot. See
Mwasaru v. Napolitano, 619 F.3d 545 (6th Cir. 2010); Zapata
v. INS, 93 F. Supp. 2d 355 (S.D.N.Y. 2000).
Other cases involve a different twist. The plaintiff files suit
and the court grants some relief—but not the visa—before
October 1. In such a case, after the selection FY has ended, the
court might lawfully take steps to compel the government to
process the plaintiff’s application and issue her a diversity visa
anyway.
That is what happened here. On September 29, the district
court ordered the government to reserve unused FY 2017 visa
numbers so that, if it turned out that plaintiffs had erroneously
been denied their diversity visas, the court could order the
government “to process visas [for plaintiffs] past the statutory
deadline.” P.K., 302 F. Supp. 3d at 10-11. The district court
cited two cases in which courts had done something similar:
Przhebelskaya v. USCIS, 338 F. Supp. 2d 399 (E.D.N.Y. 2004)
and Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999). In
both, before the selection FY ended, the district court ordered
the government to timely process plaintiffs’ diversity visa
applications. Had the government complied, plaintiffs would
have received visas. But the government did not, so the court
11
invoked its equitable power to enforce prior orders and
instructed the government to issue the plaintiffs visas even
though the selection FY had ended. See also Marcetic v. INS,
No. 97 C 7018, 1998 WL 173129, at *2 (N.D. Ill. Apr. 6, 1998)
(ordering government to comply with prior order entered by an
immigration judge requiring it to do what was necessary to
issue plaintiff’s green card).
The question is whether, now that the selection FY has
ended, the district court can order the State Department to do
anything with the unused visa numbers held in reserve pursuant
to the September 29 Order. Following Chafin, we hold that this
is a merits question in the context of this case. There, a father
sought a court order directing the mother of his daughter to
return the child to the United States after taking her to live
overseas. Chafin, 568 U.S. at 173. The mother argued that the
father did not have a legally cognizable interest in obtaining
that order because the court “lack[ed] the authority to issue” it
“pursuant to its inherent equitable powers.” Id. at 174. But that
argument—“which goes to the . . . legal availability of a certain
kind of relief—confuse[d] mootness with the merits.” Id.
Because the husband’s claim that the district court possessed
the equitable power to issue such an order was not “so
implausible that it is insufficient to preserve jurisdiction,” the
court had to assume that claim would prevail, meaning the case
was not moot. Id.
It is likewise not “implausible” that the district court here
could rely on equity to take steps to compel the issuance of
diversity visas, notwithstanding the end of FY 2017. Indeed,
the government acknowledges that courts have that power, but
in its view, that power is limited to cases like Przhebelskaya
and Paunescu in which the court orders the government to
process a visa application. By contrast, the district court here
ordered the government to hold available visa numbers to
12
potentially process plaintiffs’ applications. Because there is no
“prior court order that was not complied with,” Gov’t Br. 37,
the court cannot even “arguabl[y]” invoke equity to provide
plaintiffs relief, id. at 31, or so the argument goes, see id. at 28-
37.
This argument assigns more determinacy to the meaning
of the September 29 Order than it can bear, in our view, for
purposes of our mootness analysis. That Order instructed the
government to “hold [unused] visa numbers to process
[p]laintiffs’ visa applications in the event the Supreme Court
finds [EO-2] to be unlawful.” J.A. 112. We hold that the
September 29 Order need not be read to limit the authority of
the district court to grant additional relief to a scenario in which
the Supreme Court finds EO-2 unlawful. 2 Rather, it is at least
possible to read that Order as doing one or both of two other
things.
First, the Order might simply have preserved the “status
quo . . . while the legality of [EO-2]” was pending before the
Supreme Court, meaning it preserved the district court’s
ability, as of September 29, to rectify the erroneous denial of
plaintiffs’ visas based on a legally questionable Guidance
Memo or erroneous interpretation of the INA. See P.K., 302 F.
Supp. 3d at 7. Second, it may have told the government that if
one specific eventuality arose—the Supreme Court found EO-
2 unlawful—the State Department must process plaintiffs’ visa
2
In the district court’s view, that is all it did, and because the
Supreme Court never found EO-2 unlawful, the district court
concluded that it could not grant plaintiffs further relief. Almaqrami,
304 F. Supp. 3d at 8. Although the government does not defend this
reasoning on appeal, and plaintiffs argue this was not “an
independent alternative holding,” Pls.’ Br. 24, we are obligated to
address potential jurisdictional defects, Floyd v. District of
Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997).
13
applications. These readings may be combined. That is, the
Order could be read as (1) instructing the State Department to
“hold” these unused visa numbers for the purpose of enabling
a later judicial judgment, which might require the government
“to process” plaintiffs’ applications after any salient obstacles
were removed, and (2) identifying the specific judgment that
would issue if the Supreme Court took a certain action. Cf.
Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d
1171, 1177-78 (10th Cir. 2005) (concluding from context that
an order stating plaintiffs must submit “claims” to the FCC
only intended to refer some claims, but not others, to the FCC);
Gjertsen v. Bd. of Election Comm’rs of City of Chi., 751 F.2d
199 (7th Cir. 1984) (Posner, J.) (context and district court’s
intent demonstrated that an order styled as a “final judgment”
was actually an order granting a preliminary injunction).
On that reading, the September 29 Order left open whether
a later judgment would issue and, if so, what it would look like
in the event the Supreme Court took any of myriad other
tacks—for example, holding that the President could rely on
§ 1182(f) to restrict entry but not visas, that the IRAP I
plaintiffs lacked standing, that their claims were nonjusticiable,
or that the case must be dismissed as moot, which the district
court knew was a possibility on September 29. See P.K., 302
F. Supp. 3d at 4 n.4 (explaining that the Court had vacated oral
argument in IRAP I and ordered the parties to brief whether the
Proclamation and expiration of EO-2 mooted that case). We
need not decide the merit of these various readings; we merely
note that they are possible constructions of the September 29
Order.
That means plaintiffs’ claim that further relief is legally
available is not “so implausible” as to be “insufficient to
preserve jurisdiction.” Chafin, 568 U.S. at 174. For example, if
we were to read the Order as leaving open the possibility that a
14
later judgment would issue, now that IRAP I—the primary
obstacle the district court identified to granting plaintiffs
additional relief—has been dismissed as moot, it is not
“implausible” that the district court could grant plaintiffs
additional relief. As the district court explained, if it “were to
now order the State Department to use the unused visa numbers
to process [p]laintiffs’ visa applications, it would [arguably] be
requiring the State Department to fulfill its obligations under”
the September 29 Order, which instructed the State Department
to “reserve the unused visa numbers . . . for a specific purpose:
the future processing of [p]laintiffs’ visa applications.”
Almaqrami, 304 F. Supp. 3d at 6. Like in Paunescu and
Przhebelskaya, such an order would give effect to the district
court’s prior directive, entered before the end of the selection
FY, to preserve an essential (and otherwise expiring) ingredient
of relief. To be sure, those cases required the government to
comply with a prior order to process applications, see Gov’t
Br. 37, but they offer useful examples, not binding models, and
neither of those courts limited their holdings to the precise
scenario they confronted, see Almaqrami, 304 F. Supp. 3d at 7.
And this case is more similar to Paunescu and Przhebelskaya
than the cases dismissed as moot because the plaintiff filed too
late or the court did not act in time. All told, this is enough to
suggest that plaintiffs’ argument that the district court could
grant them additional relief, despite the end of the selection FY,
is not so “completely devoid of merit as not to involve a federal
controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. County
of Oneida, 414 U.S. 661, 666 (1974)).
B
Three other issues warrant brief discussion. First, the
district court concluded that because the expiration of EO-2
rendered challenges to that order moot, the same was true for
15
plaintiffs’ challenges to the Guidance Memo that implemented
EO-2, and therefore “this case” was moot. Almaqrami, 304 F.
Supp. 3d at 8. But plaintiffs asked the district court to declare
the policy in the Guidance Memo unlawful and enjoin the State
Department from implementing it and to order consular
officers to process their visa applications in accordance with
the INA. See P.K., 302 F. Supp. 3d at 7. If the Guidance Memo
is no longer in force, that arguably removes an obstacle to the
plaintiffs’ ability to obtain an order instructing the government
to process their applications and issue them visas pursuant to
the INA separate and apart from anything provided in the
Memo. As for their challenges to the Memo itself, although
courts generally cannot declare unlawful or enjoin policies that
are no longer in force, the district court never actually found
that the Guidance Memo “expired by its own terms” along with
EO-2. See Almaqrami, 304 F. Supp. 3d at 7 (quoting IRAP, 138
S. Ct. at 353; and citing Hawaii, 138 S. Ct. at 377). Indeed, the
present record suggests that the Memo did not. See Tr. of Oral
Arg. at 5:10-12 (plaintiffs’ counsel explaining without
contradiction that “there is nothing in the record suggesting
that” the Guidance Memo or the policy it announced “was ever
rescinded or modified”). Without making such a finding, the
district court was too quick to conclude that plaintiffs’
challenges to the Memo were moot. Compare Nat’l Ass’n of
Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 627 n.5 (2018) (“Because
the [challenged rule] remains on the books for now, the parties
retain ‘a concrete interest’ in the outcome of this litigation, and
it is not ‘impossible for a court to grant any effectual relief . . .
to the prevailing party.’” (quoting Chafin, 568 U.S. at 172)),
with Safari Club Int’l v. Jewell, 842 F.3d 1280, 1288 (D.C. Cir.
2016) (“expiration of a government policy ordinarily moots a
challenge to it”). See also Rembert v. Sheahan, 62 F.3d 937,
938 (7th Cir. 1995) (declining to address mootness in the face
of an insufficient record).
16
Furthermore, whether the Memo has expired has no effect
on the potential viability of plaintiffs’ theories of relief, which
we must assume are valid unless they are “wholly insubstantial
and frivolous.” Steel Co., 523 U.S. at 89 (quoting Bell v. Hood,
327 U.S. 678, 682-83 (1946)). EO-2 prevented nationals of
specific countries from entering the United States; it said
nothing about diversity visas. Although “aliens who are
inadmissible” to the United States for reasons described in
certain provisions of the INA “are ineligible to receive visas,”
8 U.S.C. § 1182(a), plaintiffs argue that § 1182(f), which the
President relied on to issue EO-2 and the Proclamation, is not
one of those designated provisions. Plaintiffs also argue that by
denying them visas on the basis of nationality, the State
Department and its consular officers violated 8 U.S.C.
§ 1152(a)(1)(A). They admit that some language in the
Supreme Court’s Hawaii opinion “is in tension with [their]
claim[s],” but they contend that language is neither binding nor
persuasive, and that other language in Hawaii is “profoundly
helpful.” Tr. of Oral Arg. at 6:14-17; see id. at 7:10-9:2, 23:17-
25:20. We take no position on the merits of these arguments,
or whether plaintiffs have “state[d] a claim to relief that is
plausible on its face,” as required by Federal Rule of Civil
Procedure 12(b)(6). Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). We merely note that they are sufficient to preserve
the district court’s subject matter jurisdiction. See Chafin, 568
U.S. at 174; Steel Co., 523 U.S. at 89.
Finally, because there is some chance that this relief would
be effective at securing plaintiffs’ immigration to the United
States, their “suit remains live.” Tempnology, 139 S. Ct. at
1660; see Chafin, 568 U.S. at 172, 174-75 (explaining that,
unless it is impossible to grant relief that would be effective in
securing the plaintiff’s goal, the case is not moot). Although
the Proclamation currently prevents nationals of Iran and
Yemen from entering the country, plaintiffs could qualify for
17
an exemption or waiver. Or the President might lift these
particular entry restrictions, as he has done for nationals of
Chad. Proclamation No. 9,723, Maintaining Enhanced Vetting
Capabilities and Processes for Detecting Attempted Entry Into
the United States by Terrorists or Other Public-Safety Threats,
83 Fed. Reg. 15,937, 15,938-39 (2018); see also Hawaii, 138
S. Ct. at 2422 (explaining other changes made since the initial
entry restrictions took effect). These possibilities “may be
uncertain or even unlikely,” Tempnology, 139 S. Ct. at 1660,
but that “does not typically render cases moot,” Chafin, 568 at
175; see Del. Riverkeeper Network v. FERC, 857 F.3d 388, 397
(D.C. Cir. 2017) (case was not moot even though the court’s
order “would almost certainly have no real world
consequences”). This case is no different.
III
On the present record, this case is not moot. We reverse
the order dismissing this case for lack of subject matter
jurisdiction and remand it to the district court for further
proceedings. 3
3
The government also moved to dismiss plaintiffs’ amended
complaint as nonjusticiable based on the doctrine of consular
nonreviewability and for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Mem. of Supporting Points and
Authorities at 26-31, 34-39, No. 17-cv-01533 (D.D.C. Oct. 20,
2017), Dkt. No. 53-1. The district court had already rejected the
government’s consular nonreviewability argument. P.K., 302 F.
Supp. 3d at 11-12. Because the court dismissed the case as moot, it
did not reconsider that consular nonreviewability determination or
reach the government’s 12(b)(6) argument. Almaqrami, 304 F. Supp.
3d at 9 & n.3.
When we reverse the dismissal of a case as moot, our usual
practice is to remand for the district court to consider arguments
18
So ordered.
about the merits in the first instance, assuming no other threshold
issues exist. E.g., Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956
(D.C. Cir. 2016). Because courts “may assume without deciding that
plaintiffs’ statutory claims are reviewable” and proceed to the merits
“notwithstanding consular nonreviewability,” we see no need to
address consular nonreviewability here. Hawaii, 138 S. Ct. at 2407;
see Gov’t Br. 38-43 (not arguing this doctrine is jurisdictional).