Tesfaye v. Blinken

Citation: Not availableDocket: Civil Action No. 2022-0411

Court: District Court, District of Columbia; September 29, 2022; Federal District Court

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Plaintiffs, Ethiopian nationals selected in the FY-2022 Diversity Visa Lottery, filed a Motion for a Temporary Restraining Order (TRO) on September 27, 2022, seeking to compel Defendants to schedule their visa interviews before the September 30 expiration of their eligibility and to preserve unused visas during the litigation. The Court denied the motion after reviewing the pleadings and relevant legal authority, determining that oral argument would not aid in decision-making. The Diversity Visa Program, governed by the Immigration and Nationality Act, allocates up to 55,000 visas annually to individuals from countries with low immigration to the U.S., with millions entering the lottery. The demand for these visas exceeds supply, as 63,753 were selected for FY-2022, but only approximately 55,000 visas are available. As of September 25, 2022, the State Department had issued 50,500 diversity visas for the fiscal year. The selection process involves a random number system at the Kentucky Consular Center, which ranks applicants by geographic region.

In the diversity visa application process, selectees are randomly assigned rank order numbers within their region, starting with 00000001 for the first selected entry. To apply, they must submit form DS-260, and upon submission, their application is typically marked as ‘documentarily qualified,’ allowing for visa appointment scheduling. Prior to December 2021, applicants had to submit supporting documents with their DS-260; however, updated guidance now allows selectees to present these documents at the interview location instead. Despite being ‘documentarily qualified,’ interview eligibility also depends on the applicant's rank number being within the cut-off for that month. 

Under the current guidelines established in February 2022, the Kentucky Consular Center (KCC) schedules interviews based on when processing is completed relative to the applicant's rank becoming current. Interview scheduling is influenced by various factors, including the processing speed of individual posts and the overall capacity of the consulates. Additionally, all immigrant visa applications must be reviewed by a consular officer, and while applicants usually apply at the consular office corresponding to their residence, exceptions can be made at the discretion of the consular office or the Department of State, especially in cases of hardship.

The State Department has established procedures for homeless visa applicants, defined as nationals from countries lacking U.S. consular representation or facing unstable political conditions that restrict consular processing. The National Visa Center reallocates these applicants to other posts for visa processing, while the Visa Office maintains a list of countries with homeless nationals. In November 2021, the State Department rescinded prior prioritization guidelines from the COVID-19 pandemic, allowing consular chiefs greater discretion in prioritizing services during FY-2022. The diversity visa program resets annually, with no visas issued after September 30 of the fiscal year, risking loss for selectees who do not obtain their visas in time.

In Ethiopia, a nationwide State of Emergency was declared on November 2, 2021, prompting the State Department to order the departure of non-emergency personnel due to armed conflict and civil unrest. This led to a significant reduction in consular staffing and a temporary suspension of routine visa processing, as resources were redirected to assist U.S. citizens and evacuate individuals from the Tigray region. The Ordered Departure directive ended on February 1, 2022, allowing limited visa processing to resume. As of September 21, 2022, the consular section had scheduled interviews for 359 diversity visa cases, with an additional 898 cases pending for potential interviews at the embassy. Ethiopia was not classified as a homeless country during the visa processing suspension.

Plaintiffs Assefa Alem Tegegn and Sintayehu Arega, both Ethiopian nationals selected in the FY-2022 diversity visa lottery, have derivative beneficiaries. Plaintiff Arega's case (2022AF00039044) became 'current' on April 1, 2022, and he was notified by the Kentucky Consular Center (KCC) of the processing completion on April 20, 2022. Arega sought to transfer his case to another embassy due to the lack of scheduled interviews in Addis Ababa, although it is unclear when he made this request. Plaintiff Tegegn's case (2022AF00039393) also became 'current' on April 1, 2022; he requested a transfer for a similar reason but was not granted one. As of the date of the Memorandum Opinion, neither plaintiff has been scheduled for a consular interview, with 669 cases ahead of Arega and 675 cases ahead of Tegegn and his beneficiaries in the queue. The plaintiffs filed for a temporary restraining order (TRO) shortly before the expiration of their visa eligibility. The Court directed the defendants to respond to the TRO motion by September 28, 2022, and decided on the motion without requiring a reply from the plaintiffs due to the impending deadline. The legal standard for granting a TRO is stringent, requiring a clear showing of entitlement to relief, consistent with standards for preliminary injunctions.

To obtain preliminary injunctive relief, a plaintiff must demonstrate four key factors: (1) a likelihood of success on the merits, (2) a likelihood of suffering irreparable harm without the relief, (3) a balance of equities favoring the plaintiff, and (4) that the injunction serves the public interest. The burden lies with the movant to show that these factors collectively support the injunction. The D.C. Circuit employs a sliding-scale analysis, allowing a strong showing on one factor to compensate for a weaker showing on another; however, it remains uncertain whether this approach is still valid following the Supreme Court's decision in Winter, which may establish a likelihood of success as a standalone requirement. The court must consider all four factors, adjusting the weight given to likelihood of success as necessary.

In the case at hand, the court finds that the plaintiffs have not met their burden of demonstrating a likelihood of success on the merits, a certainty of irreparable harm, or that the balance of equities and public interest favor their position. Consequently, the court denies the plaintiffs’ motion for a Temporary Restraining Order. Specifically, the plaintiffs must show a substantial likelihood of success on the merits, which includes proving both the substantive claims and establishing jurisdiction. The court emphasizes that a lack of standing undermines the plaintiffs' ability to challenge the State Department's policies related to interview scheduling delays.

The Court will first evaluate Plaintiffs' standing to challenge the 'No Reassignment' policy before addressing other policies mentioned in their Temporary Restraining Order (TRO) Motion, such as the 'Recalibration' Policy and the December 9, 2021 Guidance. To establish standing, Plaintiffs must show: (1) a concrete and particularized injury, (2) a direct connection between this injury and the defendant's actions, and (3) that a favorable ruling is likely to remedy the injury. In cases of procedural injury—where an agency fails to act according to legal standards—Plaintiffs must link this claim to a concrete interest negatively impacted by the procedural lapse. Mere procedural rights without a concrete interest do not suffice for Article III standing. If a Plaintiff asserts that an action has increased the risk of harm, they must demonstrate both a significant increase in risk and a substantial likelihood of harm. Regarding redressability, Plaintiffs need not prove that correcting the agency's procedures will yield a favorable outcome, only that their interests could be better safeguarded by such correction.

Plaintiffs claim a procedural injury due to Defendants' delays in scheduling consular interviews, arguing that the failure to be interviewed by the September 30 deadline is connected to the questioned policies or has increased their risk of not receiving an interview. They contend that a favorable court ruling could still lead to a change in their situation, potentially granting them an interview that may result in a visa.

In addressing the 'No Reassignment' policy, Plaintiffs assert that Defendants did not transfer their cases for processing while consular services were suspended in Addis Ababa. They allege that the State Department failed to designate Ethiopia as a 'homeless' country for visa processing and rejected individual requests for case transfers. However, Plaintiffs have not provided evidence of the existence of the 'No Reassignment' policy, which is essential to establish standing to challenge it, and Defendants have denied that such a policy exists.

In Haase v. Sessions, the court found that the plaintiffs' anecdotal evidence of unsuccessful transfer requests was insufficient to establish a universal policy. The plaintiffs did not demonstrate that the alleged 'No Reassignment' policy significantly increased their chances of not obtaining a consular interview. Notably, their cases only became 'current' on April 1, 2022, when the U.S. Embassy in Ethiopia resumed limited processing of diversity visa applications. Additionally, the plaintiffs' argument that the defendants should have classified them as 'homeless' to facilitate a transfer to another consular post lacked supporting evidence showing that such a classification would have improved their chances of securing an interview. Furthermore, even if all Ethiopian applicants were transferred, the plaintiffs would still be behind at least 669 cases in the queue.

The plaintiffs also claimed procedural injury due to three other State Department policies affecting DV-2022 applicants. The 'Recalibration' policy was said to prioritize other visa types over diversity visas, which the plaintiffs argued was unlawful. The December 2021 Guidance modified the document submission process for DS-260 forms, while the February 2022 change adjusted interview scheduling relative to when rank numbers became current. The court concluded that the plaintiffs failed to show how these policies affected interview order or availability. It noted that diversity visa adjudications seemed to have accelerated rather than decreased after these changes. The plaintiffs provided examples of other applicants with higher rank numbers being scheduled but did not connect this to the State Department's policies, thus lacking evidence of a substantial risk of harm attributable to the policies in question.

Plaintiffs in Babamuradova argued that lower-ranked applicants had unfairly advanced in the interview queue. The court clarified that interview scheduling is influenced by various factors beyond regional rank, such as document processing times and the volume of applicants at specific posts. Even if thirty applicants were able to 'skip' ahead, plaintiffs remained far down the queue, making it improbable for them to receive interviews before the September 30 deadline. Consequently, the plaintiffs could not demonstrate that any policy changes significantly affected their chances, thus failing to establish standing. 

Additionally, plaintiffs claimed that the defendants unlawfully withheld interviews, asserting a non-discretionary duty under the Administrative Procedure Act (APA) and 8 U.S.C. § 1202(b) to adjudicate their diversity visa applications by the fiscal year deadline. However, they failed to provide legal authority supporting this claim, and courts have determined that § 1202(b) does not impose a duty on consular officers to adjudicate specific applications, nor does it require all diversity visas for FY2022 to be processed. As such, plaintiffs did not demonstrate that the State Department had a statutory obligation to decide their visa applications by the deadline.

No statutory obligation mandates the issuance of all available diversity visas each year, and plaintiffs have not shown that 1202(b) creates a non-discretionary duty for defendants to schedule visa interviews or issue diversity visas by the September 30, 2022 deadline. Previous cases have rejected similar claims that the Foreign Affairs Manual (FAM) guidelines or the Department’s Recalibration Policy impose such duties. The FAM guidelines lack the force of law and do not require the State Department to act within any specific timeframe. Consequently, plaintiffs have not established a substantial likelihood of success in claiming that defendants unlawfully withheld action on their visa applications under the Administrative Procedure Act (APA) or Mandamus Act.

The plaintiffs also contend that defendants have unreasonably delayed processing their visa applications. The APA mandates agencies to conclude matters within a reasonable time, and courts may compel action if there is unreasonable delay. The court applies six TRAC factors to evaluate the likelihood of success on this claim: (1) decisions must adhere to a rule of reason; (2) statutory timetables can influence this rule; (3) delays impacting human health and welfare are less tolerable; (4) the effect of expediting action on other agency priorities must be considered; (5) the interests harmed by delay are relevant; and (6) no impropriety needs to be proven to establish unreasonable delay. The assessment of delay’s reasonableness depends on task complexity, outcome significance, and available agency resources. The D.C. Circuit has highlighted the need to consider competing priorities when evaluating administrative delays.

The court has consistently denied relief requests from petitioners seeking to expedite their visa applications when such relief would merely displace other applicants in the queue, creating no overall benefit. This principle is illustrated in cases such as *In re Barr Laboratories* and *Xiaobing Liu v. Blinken*, where judicial orders that prioritize one applicant lead to delays for others without increasing the total number of cases resolved. The court emphasizes that granting priority to a plaintiff would simply allow them to "skip the line," undermining the equitable treatment of all applicants. 

Additionally, the plaintiffs argue that expediting their applications would minimally impact agency resources and align with the State Department's commitment to process diversity visa interviews. However, the court finds that these claims do not counter the reality that such actions would push other applicants further back in the queue. Consequently, the fourth TRAC factor significantly favors the defendants, indicating that a finding of unreasonable delay by the agency is inappropriate under these circumstances.

The first and second TRAC factors, which assess whether the agency's decision-making follows a reasonable timeframe or statutory timeline, have not been demonstrated by the plaintiffs to weigh in their favor. The court notes that determining the existence of a "rule of reason" in the State Department's actions cannot be judged solely by arbitrary timeframes but must consider the specific context of each case.

The complexity of processing diversity visa applications is influenced by the significance of outcomes, available agency resources, and external circumstances, such as an ongoing civil conflict in Ethiopia. Plaintiffs assert that the State Department was obligated to schedule their interviews by February 1, 2022, but Defendants counter that processing has adhered to a "rule of reason" due to emergency conditions requiring prioritization of resources for U.S. citizens. The U.S. Embassy in Addis Ababa did not resume processing diversity visas until April 1, 2022, and the backlog caused by the civil unrest delayed the handling of Plaintiffs' applications, which were not eligible for interview until their turn in the queue. Plaintiffs failed to provide evidence contesting Defendants' processing timeline.

Regarding TRAC Factor 2, courts have interpreted the Immigration and Nationality Act (INA) to indicate a required pace for processing diversity visa applications, particularly emphasizing the September 30 deadline for visa issuance. Although this deadline indicates Congress's intent for expedited processing, the INA does not mandate that all diversity visas be processed by the fiscal year end, and it allows for selectees to remain eligible only until that deadline, rather than ensuring every visa is issued annually.

Plaintiffs have not established a likelihood of success for their unreasonable delay claim concerning the first TRAC factor. The second TRAC factor, while more nuanced, does not impose a statutory requirement on processing all diversity visa applications, leaving it evenly balanced. The third and fifth TRAC factors, which address the interests adversely affected by delay and the implications for human health and welfare, indicate that Plaintiffs may face significant prejudice if their visas are not processed by September 30. They cite adverse effects from civil conflict, loss of job opportunities, and lack of basic necessities. However, the Court notes that many others are in similarly challenging situations, and prioritizing Plaintiffs' applications could negatively impact other applicants. Although Plaintiffs are likely to suffer prejudice, the Court finds insufficient evidence to support a claim concerning the broader implications for human health and welfare, as it must consider the circumstances of all applicants. Regarding the sixth TRAC factor, Plaintiffs' claims of "bad faith" in Defendants' processing policies lack supporting evidence, leading the Court to conclude that there is no indication of impropriety by the State Department. Ultimately, while there is acknowledgment of potential prejudice to Plaintiffs, they have not met the burden of demonstrating a substantial likelihood of success across the TRAC factors.

The request for a temporary restraining order (TRO) would disrupt the Defendants' resource allocation and processing of competing priorities, notably thousands of visa applications, by prioritizing the Plaintiffs' applications at the expense of others. Plaintiffs failed to show a likelihood of success under the TRAC factors, which is necessary for relief under the Administrative Procedure Act (APA) or the Mandamus Act. 

Regarding irreparable harm, the Court emphasized that the injury must be certain, significant, actual (not theoretical), and imminent to warrant equitable relief. Plaintiffs claim that without being scheduled for consular interviews by September 30, 2022, they would lose their diversity visa opportunity. However, merely scheduling interviews does not guarantee visa approval, as approval is contingent on meeting specific criteria. The Court noted that the Plaintiffs' argument rests on a misunderstanding that selection in the diversity visa lottery guarantees a visa, which is not the case, as approximately 55,000 visas are available for over 63,000 selectees.

Consequently, the Court concluded that the Plaintiffs did not adequately demonstrate certain irreparable harm without the injunctive relief they sought. Lastly, the Court highlighted that when the government is involved, the balance of harms and public interest factors merge, as the government's interests reflect the public interest.

Allowing the challenged conduct to continue may harm the plaintiff and the public, but enjoining the activity could also result in public harm, indicating that the benefits of continuation may outweigh the harms. The court must evaluate the impact of granting or denying relief on all parties involved. The plaintiffs argue that the public interest supports their request related to the diversity visa program and that the relief aligns with the State Department's policy to process as many diversity visas as possible. However, the plaintiffs fail to establish a specific public interest in expediting their visa application compared to others. The court recognizes that without timely processing, plaintiffs may miss their chance to immigrate through the FY-2022 diversity visa lottery. Nonetheless, this concern does not sufficiently shift the balance of harms and public interest in favor of the plaintiffs. Granting relief would disrupt the interview queue, potentially disadvantaging other similarly situated applicants. The number of applicants significantly exceeds available visas, and selection in the lottery does not guarantee visa issuance. Ultimately, the court finds that the plaintiffs have not met the necessary burden to demonstrate a likelihood of success, irreparable harm, or that the balance of hardships and public interest favors their request. Consequently, the court denies the plaintiffs' motion for a Temporary Restraining Order.