Liudmyla Pushkar, a selectee of the 2021 Diversity Visa Lottery, faces an imminent expiration of her eligibility for a diversity visa, set to expire on September 30, 2021. She has not yet received an appointment for a consular interview, a necessary step for obtaining the visa. Consequently, Pushkar filed an Emergency Motion for a Temporary Restraining Order (TRO) to compel Secretary of State Antony Blinken and Secretary of Homeland Security Alejandro J. Mayorkas to schedule her interview and issue her immigrant visa before the deadline. In response, the Defendants opposed the motion and filed a motion to dismiss, arguing that Pushkar's complaint lacks merit. The Court denied her TRO motion and decided to hold the Defendants’ motion to dismiss in abeyance pending further briefing.
The Diversity Visa Program, established under the Immigration and Nationality Act (INA), allocates up to 55,000 immigrant visas each fiscal year to individuals from countries with low immigration rates to the U.S. Selectees must submit applications and documents to be eligible for a visa number, which is valid only during the fiscal year of selection. After being assigned a visa number, applicants must submit their documents to the Kentucky Consular Center (KCC) for review. Interviews are scheduled based on the applicant's rank number, which determines their eligibility for an appointment. Those with lower rank numbers are prioritized for interviews, while scheduling depends on consular resources and demand.
If an individual meets the necessary criteria, the State Department is mandated to issue a diversity visa. However, if the visa is not obtained by the end of the fiscal year, the opportunity is lost. The diversity visa program resets annually, with no visas issued after September 30 of each fiscal year. Demand for these visas significantly exceeds supply, with millions applying annually, yet only selectees are granted the chance to apply for a visa. For the Fiscal Year 2021, 71,817 individuals were selected from the diversity visa lottery, competing for 54,850 available visas.
During the COVID-19 pandemic, routine visa processing was suspended, limiting services to emergency cases, while diversity visas were excluded from this priority. Presidential Proclamations issued in 2020 temporarily halted the entry of immigrants, with no specific exceptions for diversity visa applicants. Consequently, the State Department interpreted these proclamations as suspending both entry and visa issuance for these applicants. The State Department's phased approach to resuming visa processing meant that diversity visas could not be processed until reaching "Phase Three," and only for those eligible under the exceptions. Guidance later updated in November 2020 allowed more flexibility in processing but still adhered to a tiered prioritization system similar to earlier directives.
Diversity visa processing was assigned the lowest priority according to the November 2020 guidance, which favored the processing of immediate relative and special immigrant visas to support family reunification. Following the change in presidential administration, a revised guidance issued on February 19, 2021, instructed that diversity visa cases subject to Proclamation 10014 should begin scheduling appointments starting in April 2021, while still prioritizing family-based visas. The February guidance maintained the tiered prioritization from November 2020 and allowed for some diversity visa scheduling each month, contingent on backlogs.
On February 24, 2021, President Biden revoked Proclamation 10014 and related measures that barred entry for diversity visa holders. Processing for DV-2021 applications commenced in June 2020, with at least 11,370 applications adjudicated from March 1 to September 2, 2021, and over 10,439 interviews scheduled for 21,092 applicants as of September 17, 2021. The majority of DV-2021 selectees, 76%, were concentrated in 30 high-volume consular posts, including Kyiv, where COVID-19 impacted processing capabilities due to staffing limitations.
Litigation regarding the processing of diversity visa petitions during the 2020 and 2021 fiscal years has been extensive. On September 9, 2021, a court granted a preliminary injunction mandating the Department of State to expedite processing of DV-2021 applications by September 30, 2021, which applies to all DV-2021 selectees, including the plaintiff, Liudmyla Pushkar, a Ukrainian resident who applied for her visa on June 20, 2020. Her visa number became current on June 1, 2021, yet she has not received an appointment for a consular interview in Kyiv.
Plaintiff initiated her case on June 22, 2021, in the United States District Court for the Northern District of Illinois, which was later transferred to the current court on August 31, 2021, due to related pending matters regarding diversity visas. In her Complaint, Plaintiff alleges that Defendants have unlawfully delayed the adjudication of her visa petition under the Mandamus Act and the Administrative Procedure Act, seeking an order to compel Defendants to adjudicate her immigrant visa application. On September 13, 2021, she filed an Emergency Motion for Temporary Restraining Order (TRO) to compel Defendants to schedule her visa interview, arguing that failure to do so would prevent her from immigrating before her eligibility for a diversity visa expired on September 30, 2021. A briefing schedule for the TRO was established on September 14, 2021. Defendants opposed the TRO and filed a motion to dismiss the Complaint on September 20, 2021, while Plaintiff requested additional time to respond to this motion. The Court set a briefing schedule for the motion to dismiss.
The legal standard for granting a TRO requires a clear showing by the requesting party that meets specific criteria, including likelihood of success on the merits, potential for irreparable harm, balance of equities, and public interest. This standard aligns with the requirements for a preliminary injunction, which is also considered an extraordinary remedy. To succeed in such requests, the movant must demonstrate that all four factors favor the injunction, which are evaluated on a sliding scale.
The sliding-scale framework allows a movant to compensate for weaker showings on certain factors by making stronger demonstrations on others when seeking a preliminary injunction. However, uncertainty exists regarding whether the D.C. Circuit’s sliding-scale approach still applies post-Supreme Court decision in Winter, with some judges suggesting that a likelihood of success has become a standalone requirement. Despite this ambiguity, the Court will weigh all preliminary injunction factors but will evaluate the likelihood of success only if it could influence the outcome.
The Court concludes that the Plaintiff has not met her burden of proving a likelihood of success on the merits, irreparable harm, or favorable balance of equities and public interest, leading to the denial of her emergency motion for a temporary restraining order (TRO). The D.C. Circuit regards the likelihood of success as the most critical factor for preliminary injunctive relief. The Plaintiff asserts that Defendants have unlawfully delayed her visa application processing, violating the Administrative Procedure Act (APA) and the Mandamus Act.
To assess the claim of unreasonable delay, the Court references the APA’s stipulation for agencies to conclude matters within a reasonable timeframe and the TRAC factors for determining unreasonable delay. These factors include the need for decision-making to follow a rule of reason, consideration of statutory timelines, and the heightened scrutiny for delays impacting human health and welfare. The Court finds that the Plaintiff has not sufficiently demonstrated a substantial likelihood of success on her claims regarding the delay in her visa application processing.
The court must evaluate several factors regarding the reasonableness of agency delays, notably the impact of prioritizing one case over others and the nature of interests affected by such delays. It is not necessary to demonstrate misconduct by the agency to determine that action has been unreasonably delayed. The D.C. Circuit emphasizes that assessing administrative delay requires consideration of competing priorities, highlighting that granting relief to one party may simply displace others in the queue without benefiting anyone. In this instance, the Plaintiff's request for a temporary restraining order (TRO) to expedite her visa interview would unfairly advance her application ahead of others with similar claims, thereby causing additional delays for those applicants. Courts have consistently denied requests that would prioritize one visa applicant over others. The Defendants argue that granting the Plaintiff's request would redirect resources from processing other applications, undermining the agency's capacity to manage its workload effectively. Although the Plaintiff claims there are only a few cases pending at the Kyiv consulate, the Government reveals a larger backlog of over 1,200 cases in other visa categories, indicating that the agency's scheduling constraints are broader than the Plaintiff acknowledges.
Defendants argue that health and safety measures adopted during the COVID-19 pandemic have significantly delayed the processing timeline of the noncitizen Plaintiff’s visa case. They cite the pandemic's major impact on operations in Kyiv, particularly on the consular section, which has necessitated these delays to ensure safety for U.S. officials and visa applicants. Although Plaintiff references a ruling by Judge Mehta that found the State Department's five-month halt on visa processing unreasonable, she does not contest the policies causing the delay in her case or provide evidence that her visa was specifically affected. Notably, her visa rank became "current" on June 1, 2021, after the Kyiv consulate reportedly resumed processing diversity visa applications on April 1, 2021. This situation suggests that the factors weigh in favor of Defendants, indicating that Plaintiff is unlikely to succeed on the merits regarding the fourth TRAC factor. Additionally, prior court rulings have indicated that plaintiffs challenging the effects of suspended diversity visa processing may lack standing if processing has resumed.
Regarding the first and second TRAC factors, which assess whether agency decision-making adheres to a "rule of reason" and whether a "statutory timeline" influences this, Plaintiff has not shown a substantial likelihood that these factors favor her. The determination of a "rule of reason" is context-dependent, influenced by the complexity of tasks, outcomes, and resources available to the agency. Plaintiff fails to argue that the State Department's processing timeline lacks reasonableness. Her visa did not become eligible for processing until June 1, 2021, and Defendants clarify that visa processing order is based on priority numbers, qualifications, and consulate conditions. Despite the ongoing pandemic limitations affecting all visa types, Plaintiff provides no evidence to contradict Defendants’ claims regarding the reasonableness of the processing timeline.
Plaintiff argues that the second TRAC factor supports her case due to the September 30 deadline in the INA for issuing diversity visas, suggesting that Congress intended for the State Department to make good-faith efforts to process these visas by that date. Previous court rulings, particularly Gomez I, have interpreted the INA as indicating the urgency expected in processing diversity lottery visa applications. Gomez I highlighted that while the INA does not explicitly require the State Department to complete processing by the deadline, it implies that diversity visas should be processed quickly. The court acknowledged that while Congress’s deadline and allocation of visas suggest a desire for expedited processing, it does not guarantee that all visas will be issued by the deadline. Consequently, the court concluded that the Plaintiff has not shown a strong likelihood of success regarding her unreasonable delay claim under the first TRAC factor. The second factor presents a more nuanced situation, indicating that while Congress intends a number of visas to be processed by fiscal year-end, there is no statutory obligation for all applications to be addressed. Moreover, evidence suggests that the number of selectees exceeds the available visas for FY2021, leaving the second TRAC factor essentially balanced between the parties. The third and fifth TRAC factors, which address the nature of interests affected by delay and implications for human health and welfare, are typically analyzed together.
Plaintiff demonstrates potential success on the fifth TRAC factor regarding prejudice stemming from the failure to schedule a consular interview, which threatens her ability to secure a visa by September 30 and jeopardizes her immigration through the diversity visa program for the fiscal year. However, she does not establish a favorable position on the third TRAC factor, as her claims of jeopardized health and welfare must be balanced against the circumstances of other applicants facing similar delays. Scheduling her interview could disadvantage others in the queue, including family-based applicants, and the court acknowledges that many are in comparable situations.
Regarding the sixth TRAC factor, the court notes that it does not require evidence of agency impropriety to find unreasonable delay, but Plaintiff does not argue any such impropriety, leading the court to make no determination on this factor. Overall, while Plaintiff may prove some prejudice if her visa is not processed by the deadline, she fails to convincingly demonstrate a substantial likelihood of success on the merits of her claims concerning unreasonable delay and unlawful withholding of her visa, as such relief would disrupt Defendants' resource allocation and processing of numerous applications. The court concludes that Plaintiff has not met the criteria for relief under the Administrative Procedure Act (APA) or the Mandamus Act.
Mandamus relief is characterized as a "drastic and extraordinary remedy," appropriate only in exceptional circumstances. Defendants assert that Plaintiff lacks a nondiscretionary duty for timely action on her visa case, claiming no legal entitlement exists for adjudication within a specific timeframe. The absence of a clear duty under the statute necessitates dismissal of the action. In contrast, Plaintiff argues that the Immigration and Nationality Act (INA) mandates the processing of diversity visas, referencing the statute's allocation of 55,000 visas and a judicial conclusion that consular officers have a duty to adjudicate immigrant visa applications. However, the court distinguishes this case from a previous ruling (Filazapovich), which involved a broader challenge against halted diversity visa processing and did not assert individual rights to timely adjudication. It is acknowledged that visa processing resumed before Plaintiff's complaint and her visa became current.
Plaintiff's argument that Defendants are obligated to schedule a consular interview within a certain timeframe lacks support, and relevant regulations do not impose such a requirement. The regulation cited merely mandates a decision on complete applications, which has not yet occurred since Plaintiff has not secured an interview. Consequently, Plaintiff has not shown a likelihood of success on her claims regarding unreasonable delay or unlawful withholding of her visa application. The Court also considers whether Plaintiff has demonstrated "irreparable harm" in this context.
Irreparable harm requires that the injury must be certain, great, actual, imminent, and beyond remediation, necessitating equitable relief. Plaintiffs must demonstrate that irreparable injury is likely without an injunction, as merely the possibility of harm is insufficient. The burden of proof for irreparable injury is substantial, requiring evidence of a clear and present need for extraordinary relief. In the case at hand, the plaintiff argues that if her visa is not issued by September 30, 2021, she will permanently lose her chance to immigrate through the diversity visa program, leading to prolonged separation from her daughter in the U.S. However, simply scheduling an interview does not resolve the claimed irreparable harm, as the application must still be approved or denied. The plaintiff incorrectly assumes that selection in the diversity visa lottery guarantees a visa; it only guarantees the opportunity to apply for one of 55,000 available visas. Therefore, the plaintiff's request for a temporary restraining order (TRO) to compel the scheduling of her interview and issuance of a visa is based on flawed reasoning. The court concludes that the plaintiff has not demonstrated certain irreparable harm necessary for the requested relief.
Furthermore, the court must consider the balance of harms and public interest when deciding on a TRO. When the government is involved, these factors are interconnected, as the government's interest reflects the public interest. While the plaintiff may face harm if the challenged action continues, enjoining the government’s activity could also result in harm, indicating that the public might benefit from allowing the current conduct to persist. Thus, the court must weigh the effects of granting or denying the requested relief on all parties involved.
Plaintiff's argument that neither Defendants nor the public have a valid interest in her exclusion from the country is based on the incorrect premise that she is entitled to a visa. She must complete several steps, including an interview, to be eligible for a visa, and she has not demonstrated any public interest in prioritizing her interview over other applicants. The decision to grant or deny a visa lies within the Executive branch's discretion. Although Plaintiff may face loss of her immigration opportunity due to delays in scheduling her consular interview, the Court finds this does not outweigh the harms and public interest considerations against granting her Temporary Restraining Order (TRO). Granting the TRO would require changing the processing order, disadvantaging other similarly situated applicants. The number of applicants for the diversity visa far exceeds available visas, and being selected in the lottery does not guarantee a visa. Ultimately, the Court concludes that Plaintiff has not met the requirements to demonstrate a likelihood of success, certainty of irreparable harm, or that the balance of hardships favors her. Therefore, the Emergency Motion for a TRO is denied.
