Gladys Kessler, United States District Judge.
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
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 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 [Dkt. 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].
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
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:
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 offer 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 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 or removal of applicants from Afghanistan with only slight differences in phrasing).
The RCIA and AAPA require Defendants to issue reports to Congress regarding the number and status of SIV applications
As each of the Joint Reports states, "SIV applications move through 14 steps, in the following four stages: Chief of Mission ("COM") Application Process; Form 1-360 Adjudication; Visa Interview; and Visa Issuance."
Once an applicant has received COM Approval, he or she must enter the second stage of the process by submitting a completed Form 1-360 to the Department of Homeland Security's U.S. Citizenship and Immigration Services ("USCIS").
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.
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:
"Upon completion of administrative processing," the applicant enters the fourth
Plaintiffs' Amended Complaint brings claims on behalf of 12 Plaintiffs — 8 Iraqi and 4 Afghan citizens — proceeding under the following pseudonyms: Ronaldo, Alpha, Bravo, Delta, Foxtrot, India, Juliet, Alice, Hotel, Lima, Kilo, and Mike.
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."
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.
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)
Despite the statement from the Government's own declarant that Ronaldo's visa had been refused, the Government's Motion inexplicably asserts
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.
Supp. Decl. 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 Decl."), which, like the previous Dybdahl Declaration, states that Ronaldo's visa application "remains refused under [] 8 U.S.C. § 1201(g)." Second Dybdahl Decl. [Dkt. No. 49-1].
Upon this record, it is clear that Ronaldo has not received a visa.
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.
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
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 Decl. 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 Decl. at ¶ 9.
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.
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 Decl. ¶ 14. However, he and his family were not permitted to board a flight to the United States, and the visas were subsequently revoked.
Juliet first applied for COM Approval on March 29, 2011, and completed his visa interview on March 1, 2012. 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 Decl. at ¶¶ 11, 14, 15, and 19;
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.
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. § 1201(g). Dybdahl Decl. at ¶¶ 13 and 17;
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 application process, Kilo does not have a complete SIV application pending before the State Department.
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 Decl. 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),
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.
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."
Under the
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. Decl. Ex. A [Dkt. No. 48-2]. Plaintiffs also ask to file a Declaration explaining the e-mail's origin. Supp. Decl. [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,
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.
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.
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."
Plaintiffs contend that the APA requires Defendants to finally adjudicate their applications within a "reasonable time[.]" 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 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 the doctrine of consular nonreviewability, 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.
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.
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 also 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 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
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 (
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 duty is non-discretionary and must "ordinarily" be completed within nine months.
The Government also argues that the Court may not redress Plaintiffs' injuries because courts are not free to fashion their own "coercive sanctions" to bring about compliance with statutory deadlines.
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.
In short, Plaintiffs have been injured by the failure to obtain final decisions on their SIV applications, that injury is 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.
As already discussed, the Government's major argument is that Plaintiffs' applications
The Government summarizes the core of its argument in its opening brief:
Gov't's Mot. at 24.
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. § 1201(g) and/or other grounds." Gov't's Mot. at 13;
However, the facts do not support the Government's repeated and emphatic assertions.
As discussed in section I.B. above, Plaintiffs Alpha, 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. § 1201(g), which provides in relevant part that consular 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.
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."
In support of their contention that their applications have not received a final decision, Plaintiffs put forth a significant body of evidence.
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.
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.
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.
The Joint Reports go on to note that "[e]ven if an applicant has acted promptly
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. § 1201(g)]
The notice provided to applicants at the Kabul Embassy similarly advises applicants that their application "needs further 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:
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 Decl. at ¶ 7.
The Second Dybdahl Declaration states that just three days later, on September 4, 2015, a consular officer issued visas to Bravo and his family members. Second Dybdahl Decl. ¶ 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.
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:
Pls.' Supp. Decl. 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.
The Government argues that because 8 U.S.C. § 1201(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 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, which 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
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);
The Government also cites 8 U.S.C. § 1201(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.
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
The Government's argument — and the case it cites — rest upon the premise that Plaintiffs seek to challenge elements of a final decision with which they disagree.
The Government also makes much of a passage in Justice Kennedy's concurrence in
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
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.
In its seminal case on consular nonreviewability, our Court of Appeals explained the doctrine as follows:
The doctrine preceded passage of the APA and constitutes an exception to the presumption of judicial review as contemplated in the APA.
"[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."
However, as Plaintiffs point out, the doctrine of consular nonreviewability is not triggered until a consular officer has made a
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.
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.
District courts outside of the Ninth Circuit have reached the same conclusion.
In short, the doctrine holds only that "there may be no judicial review of []
Plaintiff Kilo's application has not advanced as far as those of other Plaintiffs and is not at the "administrative processing" (13th) 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.
Kilo has not submitted his full SIV application because he
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, "
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]. SIV applications are sent to the NVC at the second stage of the SIV approval process, just before the interview stage begins.
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.
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
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 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,'
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[.]"
Simply put, the APA imposes a duty
Finally, the Government actually acknowledges that its duty to eventually reach a decision on pending SIV applications is nondiscretionary. Gov't's Mot. at 36 ("[T]he only nondiscretionary duty Defendants owed was to make a decision on the pending applications of Plaintiffs ... to issue or refuse their visas, which they did.").
Admittedly,
Second
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.
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 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 cases" indicate a distinction between the run-of-the-mill case, which must be adjudicated within nine months, and a subset of cases presenting "national security concerns"
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 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
The Government has suggested that because the applications of Charlie and Golf, named as Plaintiffs in the initial 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
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.
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."'
Mandamus is "a drastic and extraordinary remedy reserved for really extraordinary causes."
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.
The Government also contends that Plaintiffs' claims must fail because any delays in processing their applications are "based on their own failures to submit 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 Decl.). This factual assertion directly conflicts with facts pled in Plaintiffs' Amended Complaint.
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.
RCIA § 1244(e) provides 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, 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).
The Government contends that this Court is without jurisdiction to hear Claims 1 and 2.
"[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."
The statutory duties that Plaintiffs cite are of the type described in
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.
True, the RCIA and AAPA both use the word "shall," which generally indicates an "affirmative command."
RCIA § 1245(e) (emphasis added);
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.
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
However, even if the Secretary's duty to consult were nondiscretionary, 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."
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[.]"
For the foregoing reasons, Plaintiffs' Motion to File a Supplemental Declaration shall be
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 N1.
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.
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.]"
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 N1. An application that received only "temporary refusal" would seem to remain pending.
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.
However,
