Vokhobov v. Blinken ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FARANGIS KHAMRABAEVA, et al. :
:
Plaintiffs, : Civil Action No.: 22-cv-1219 (RC)
:
v. : Re Document No.: 14, 16, 20
:
ANTONY BLINKEN, :
U.S. Secretary of State, et al., :
:
Defendants. :
ZEBO MAVLONOVA, et al. :
:
Plaintiffs, : Civil Action No.: 22-cv-2400 (RC)
:
v. : Re Document No.: 3, 9, 11
:
ANTONY BLINKEN, :
U.S. Secretary of State, et al., :
:
Defendants. :
NOHA MAHMOUD ELSAYED :
ELSADAWY, et al. :
:
Plaintiffs, : Civil Action No.: 22-cv-1381 (RC)
:
v. : Re Document No.: 15, 16, 19
:
ANTONY BLINKEN, :
U.S. Secretary of State, et al., :
:
Defendants. :
SHERIF SHAABAN IBRAHIM DAIF, et al. :
:
Plaintiffs, : Civil Action No.: 22-cv-2474 (RC)
:
v. : Re Document No.: 6, 7, 9
:
ANTONY BLINKEN, :
U.S. Secretary of State, et al., :
:
Defendants. :
KHOLMATJON VOKHOBOV, et al. :
:
Plaintiffs, : Civil Action No.: 22-cv-2128 (RC)
:
v. : Re Document No.: 8, 9, 11
:
ANTONY BLINKEN, :
U.S. Secretary of State, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING PLAINTIFFS’ MOTIONS FOR TEMPORARY RESTRAINING ORDERS
I. INTRODUCTION
Before the Court are motions for a temporary restraining order (“TRO”) in five cases. 1 In
each case, Plaintiffs are families of foreign nationals who were selected out of a lottery run by
the U.S. Department of State (the “Department”) to participate in the diversity visa (“DV”)
program for fiscal year 2022. The DV program allocates up to 55,000 immigration visas
annually to qualified individuals from countries with historically low levels of immigration to the
United States through an intricate lottery system. Plaintiffs filed suit alleging that the
1
Although Plaintiffs’ motion is not styled as a motion for preliminary injunction, the Court treats
it as such because it was subject to full briefing and a hearing and Plaintiffs are “effectively
foreclose[d] . . . from pursuing further interlocutory relief.” Belbacha v. Bush, 520 F.3d 452, 455
(D.C. Cir. 2008) (internal quotation omitted); see also Miller v. Mitchell, 598 F.3d 139, 145 (3d
Cir. 2010) (treating a TRO as a preliminary injunction because “it was entered for an
indeterminate period of time after notice to the defendant and an adversary hearing”).
2
Department unlawfully withheld adjudication of their diversity visa applications. In early
September 2022,2 Plaintiffs filed substantially similar TRO motions in each case seeking
declaratory and injunctive relief ahead of September 30, 2022, the statutory deadline after which
their eligibility to participate in the fiscal year 2022 DV program expires. Defendants filed an
opposition in Khamrabaeva v. Blinken, No. 22-cv-1219 on September 13, 2022 (“Def.’s
Opp’n”). At the Court’s request, Defendants submitted a joint opposition, incorporating and
supplementing the opposition in Khamrabaeva, in the remaining four cases on September 16,
2022 (“Def.’s Joint Opp’n”) and Plaintiffs filed a joint reply on September 19, 2022. The Court
held a hearing on the motions on September 20, 2022. Because Plaintiffs’ motions involve
common questions of law and fact, the Court considers them jointly. Fed. R. Civ. P. 42(a). The
Court sympathizes with Plaintiffs’ situation, but for the reasons stated below their motions are
denied.
II. LEGAL AND FACTUAL BACKGROUND
In general, a foreign national who seeks to enter the United States must first obtain a visa
from the Department. Under two umbrella categories – immigrant visas and nonimmigrant visas
– a variety of different types of visas may be granted to applicants under different conditions and
for different purposes. See Directory of Visa Categories, Department of State, available at
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-
categories.html. Immigrant visas are for those who intend to relocate permanently to the United
2
Motions were filed in each case on the following days: Khamrabaeva v. Blinken, No.
22-cv-1219 on September 6, 2022; Mavlonova v. Blinken, No. 22-cv-2400 on September 9,
2022; Elsadawy v. Blinken, No 22-cv-1381 on September 12, 2022; Daif v. Blinken, No. 22-cv-
2474 on September 13, 2022; Vokhobov v. Blinken, No. 22-cv-2128 on September 14, 2022.
3
States, while nonimmigrant visas are for those seeking to stay only temporarily. Only one
category of immigrant visa is relevant to this case: the diversity visa.
The DV program allocates up to 55,000 visas annually for foreign nationals seeking to
permanently relocate to the United States from historically “low-admission” countries and
regions. See 8 U.S.C. §§ 1151(a)(3), (e); 8 U.S.C. § 1153(c). Anticipating the large number of
individuals who apply for diversity visas each year, Congress created rules governing the
diversity visa application and adjudication process and empowered the Secretary of State (the
“Secretary”) to oversee it. See 8 U.S.C. §§ 1153(c), 1154(a)(1)(I), 1202. 3 Specifically, Congress
directed the Secretary to establish a system to issue diversity visas to “eligible qualified
immigrants strictly in a random order.” 8 U.S.C. § 1153(e)(2). That system, embodied by 22
C.F.R. § 42.33, takes the form of an annual lottery.
At a high level, individuals like Plaintiffs who were lucky enough to be chosen from this
lottery (“selectees”) have the opportunity submit a visa application and receive a “rank order”
that determines the order in which they may be scheduled for an interview at a U.S. embassy or
consulate to have their application adjudicated. See 22 C.F.R. § 42.33(b)-(d); Gomez v. Trump,
485 F. Supp. 3d 145, 159 (D.D.C. 2020). Selectees whose applications have not been
adjudicated by the end of the fiscal year on September 30 lose eligibility. 22 C.F.R. § 42.33(f).
Plaintiffs, whose families seek to immigrate from Tajikistan, the United Arab Emirates, Saudi
Arabia, and Uzbekistan, filed suit to avoid such an outcome.
3
Congress also empowered the Secretary to issue regulations to maintain the waiting list for visa
applicants. 8 U.S.C. §1153(e)(3).
4
III. LEGAL STANDARD
Like a preliminary injunction, a temporary restraining order is an “extraordinary
remedy.” Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Gomez v. Trump, 485 F.
Supp. 3d at 168 (“Motions for temporary restraining orders and preliminary injunctions are
analyzed using the same standards.”). When considering an application for emergency
injunctive relief, courts consider four factors: “(1) whether there is a substantial likelihood that
plaintiffs will succeed on the merits of their claims, (2) whether plaintiffs will suffer irreparable
injury absent an injunction, (3) whether an injunction would harm the defendants or other
interested parties (the balance of harms), and (4) whether the public interest would be furthered
by an injunction.” Monument Realty LLC v. Washington Metro. Area Transit Auth., 540 F.
Supp. 2d 66, 74 (D.D.C. 2008). A TRO “should be granted only when the party seeking relief,
by a clear showing, carries the burden of persuasion” on all four factors. Cobell v. Norton, 391
F.3d 251, 258 (D.C. Cir. 2004).
Courts in this district have described the substantial likelihood of success on the merits
factor as “particularly important” because without such a showing, “there would be no
justification for the court's intrusion into the ordinary processes of administration and judicial
review.” Hubbard v. United States, 496 F. Supp. 2d 194, 198 (D.D.C. 2007) (quoting Am.
Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999)). “[A]
failure to show a likelihood of success on the merits is sufficient to defeat a motion for a
preliminary injunction.” Archdiocese of Washington v. Washington Metro. Area Transit Auth.,
281 F. Supp. 3d 88, 99 (D.D.C. 2017), aff'd, 897 F.3d 314 (D.C. Cir. 2018) (citing first Ark.
Dairy Co-op Ass'n, Inc. v. United States Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009); and
then Apotex, Inc. v. FDA, 449 F.3d 1249, 1253–54 (D.C. Cir. 2006)).
5
IV. ANALYSIS
Plaintiffs selected four claims from their pleadings to pursue in their TRO motions: (1)
that the Department unlawfully withheld consular interviews and therefore Plaintiffs’ ability to
complete their visa applications, in violation of the Administrative Procedure Act (“APA”), 5
U.S.C. § 706(1); (2) that the Department unreasonably delayed adjudication of their visa
applications, in violation of 5 U.S.C. § 706(1); (3) that two changes to the Department’s visa
processing and adjudication policies were arbitrary and capricious under the APA, 5 U.S.C. §
706(2); and (4) that the Department’s failure to fulfill its legal duty to adjudicate Plaintiffs’ visa
applications gives the court mandamus jurisdiction under 28 U.S.C. § 1361. See Plaintiffs’
Motion for Temporary Restraining Order (“TRO”), Vokhobov v. Blinken, No. 22-cv-2128, ECF
No. 8-1 at 16-28. 4
The Court considers the third allegation first, which it will refer to as the “policy claims,”
before proceeding to joint consideration of claims one, two, and four.5 In service of these
claims, the motion fleetingly alleges that the Department adjudicated diversity visa applications
out of rank order. TRO at 21, 28. Plaintiffs’ reply brief seemingly attempts to recast these spare
allegations as a separate claim under Accardi v. Shaughnessy, 347 U.S. 260 (1954), backed up by
4
Because Plaintiffs’ motions are substantially similar in each case, for ease of reference and
unless otherwise specified, the Court will cite to docket numbers and use pin citations
corresponding to filings in Vokhobov v. Blinken, 22-cv-2128, the case in which Plaintiffs’ most
recent motion for a temporary restraining order was filed.
5
The parties dispute whether Plaintiffs properly pleaded a mandamus claim under 18 U.S.C. §
1361. Regardless, the Court’s analysis would not change, as “the standards for obtaining relief
under the Mandamus Act and the APA provision permitting courts to compel agency action
unlawfully withheld . . . are essentially the same.” Verma v. United States Citizenship and
Immigration Servs., 2020 WL 7495286 *1, *5 n.3 (D.D.C. 2020) (citing Vietnam Veterans of
Am. v. Shineseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010) (internal quotations omitted). As such,
“when a plaintiff fails to establish an undue delay, its claim for mandamus relief under 28 U.S.C.
§ 1361 necessarily fails as well.” Id. (internal quotations omitted).
6
new factual allegations. 6 See Plaintiffs’ Reply, Vokhobov v. Blinken, 22-cv-2128, ECF No. 11,
at 13-15. The Court takes note of these factual allegations for purposes of evaluating Plaintiffs’
other claims, but does not consider this standalone Accardi claim because it was not properly
pled and Defendants did not have an opportunity to respond. See Bird v. Barr, 2020 WL
4219784 *1, *2 (D.D.C. July 23, 2020) (“[A] proper motion for a preliminary injunction seeks to
enjoin the action that the complaint alleges is unlawful prior to the completion of the litigation,
and without such a connection between the claim and requested injunction, there is simply no
jurisdictional basis for the Court to grant preliminary relief.”) (formatting omitted).
A. Policy Claims
Plaintiffs’ policy claims arise out of two actions taken by the Department that allegedly
affected the processing and adjudication of diversity visa applications. First, Plaintiffs take issue
with a February 2022 amendment to a section of the Department’s internal guidelines, embodied
in the Foreign Affairs Manual (“FAM”), that deals with diversity visa processing (the “FAM
amendment”). TRO at 6-8. Specifically, in February 2022, 9 FAM 502.6-4 was amended to
read that the Kentucky Consular Center (“KCC”), which is responsible for pre-adjudicatory
processing of diversity visa applications, will schedule interviews for applicants “around the
time their regional program rank number is current,” whereas previously it said that KCC will
schedule interviews when an applicant’s “regional lottery rank number is about to become
current.” Compare Ex. B to TRO at 12, ECF No. 8-4 with Ex. C to TRO at 11, ECF No. 8-5
(emphasis added). This followed a processing change announced by the Department in
December 2021, which allowed selectees to submit only a form DS-260 immigrant visa
6
This new Accardi claim is separate from the Accardi claims that Plaintiffs included in their
pleadings but forewent in their TRO motions.
7
application, without the supporting documents that were previously required, in order to initiate
processing of their application. TRO at 6-7; Ex. A to TRO, ECF No. 8-3.
Second, Plaintiffs take issue with a cable from the Department, 21 STATE 115378,
issued on November 16, 2021 (the “cable”). See Ex. E to TRO, ECF No. 8-7. Plaintiffs allege
that the cable, which rescinded and replaced COVID-related guidance concerning visa
prioritization, constituted the beginning of a “recalibration” or “quasi-prioritization” policy that
interfered with the processing and adjudication of Plaintiffs’ diversity visa applications. TRO at
8-9 & n.2; Ex. E to TRO.
Plaintiffs lack standing to pursue these claims. The judicial power extends only to
“Cases” and “Controversies” under Article III. U.S. Const. art III, §2. The requirement that a
plaintiff have standing “is an essential and unchanging part of the case-or-controversy
requirement of Article III.” Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Consequently, “[e]very
plaintiff in federal court bears the burden of establishing the three elements that make up the
irreducible constitutional minimum of Article III standing: injury-in-fact, causation, and
redressability.” Id. at 1362 (internal quotation omitted). Standing is “not dispensed in gross;”
rather, Plaintiffs must show standing as to each claim. Davis v. FEC, 554 U.S. 724, 734 (2008)
(internal quotation omitted).
Plaintiffs fail to demonstrate that they have suffered an injury-in-fact or that any injury
they suffered was caused by the challenged policies. Plaintiffs allege that the FAM amendment
and the cable resulted in a “substantially increased” risk of the procedural harm that Plaintiffs
“will not receive their immigration visas before the end of the fiscal year.” TRO at 13. In order
to establish standing based on an increased risk of harm, Plaintiffs must show “both (i) a
8
substantially increased risk of harm and (ii) a substantial probability of harm with that increased
risk taken into account.” Public Citizen v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279,
1295 (D.C. Cir. 2007) (emphasis in original). Courts apply a “very strict understanding of what
increases in risk and overall risk levels can count as ‘substantial.’” Id.Plaintiffs fall short of showing a substantial increase in the risk of harm that is traceable
to the challenged policies because diversity visa adjudications appear to have accelerated, not
decreased, after the challenged policies took effect. Consular offices adjudicated 15 and 17
diversity visas in October and November 2021, respectively. Ex. C to Def.’s Joint Opp’n ¶ 5,
ECF No. 9-4. The cable was issued in mid-November 2021. Diversity visa adjudications
accelerated rapidly starting in December 2021 and January 2022, with 224 and 1,358
adjudications respectively. Id. The FAM amendment occurred in February 2022, after which
the dramatic acceleration in adjudications continued: between March and August 2022, consular
offices adjudicated between 5,000 and over 15,000 diversity visas per month. Id. As of
September 5, 2022, the Department had scheduled interviews for 70,872 applicants and their
derivatives, which, according to the affidavit of Defendant Morgan Miles, the Director of KCC,
makes interview scheduling “substantially complete” for purposes of reaching the 55,000
diversity visa cap. Ex. A to Def.’s Joint Opp’n ¶ 2, 4, ECF No. 9-2. Whether or not the
challenged policies caused the acceleration, the fact of the acceleration belies Plaintiffs’ assertion
that those policies substantially increased their risk of harm. Accordingly, Plaintiffs have not
met their burden to demonstrate that they suffered an injury-in-fact traceable to the challenged
policies sufficient to create standing. 7
7
Even if Plaintiffs established standing, it is at best doubtful that the FAM modification
or the cable constitutes “final agency action” that may be challenged under the APA. To
constitute final agency action, the action must “mark the consummation of the agency’s
9
B. Unlawful Withholding and Unreasonable Delay Claims
Plaintiffs allege that the Department has unlawfully withheld and unreasonably delayed
visa adjudication from plaintiffs under the APA, 5 U.S.C. § 706(1). As an initial mater, the
Court finds that plaintiffs have standing to pursue these claims. If the Department had
unlawfully withheld or unreasonably delayed Plaintiffs’ visa adjudication, given the fact that
Plaintiffs still have not had their interviews scheduled just one week before the September 30
deadline, that withholding or delay would have “substantially increased the risk of harm” and left
Plaintiffs with a “substantial probability of harm with that increase taken into account.” Public
Citizen, 489 F.3d at 1295 (formatting omitted). This harm could be redressed by a court order
that the Department must adjudicate Plaintiffs’ applications and preserve unused visas for that
purpose if those adjudications are not complete by September 30, 2022. See Gomez v. Biden,
2021 WL 3663535 *1, *2 (D.D.C. August 17, 2021) (ordering State Department to adjudicate
diversity visas previously ordered reserved for plaintiffs beyond the September 30 deadline). 8
decisionmaking process . . . [and] be one by which rights or obligations have been determined, or
from which legal consequences will flow.” Sierra Club v. Environmental Protection Agency,
955 F.3d 56, 61 (D.C. Cir. 2020) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Put
differently, the action must represent a “definitive position on the issue that inflicts an actual,
concrete injury.” Mass. Coalition for Imm. Reform v. United States Dep’t of Homeland Sec.,
2022 WL 3277349, *1, *7 (D.D.C. August 11, 2022) (quoting Darby v. Cisneros, 509 U.S. 137,
144 (1993).
The minor change to the FAM’s language, substituting one vague temporal descriptor for
another, does not rise to the level of action from which legal consequences flow. Regarding the
cable, by Plaintiffs own admission it does not represent the consummation of the agency’s
decisionmaking process. See TRO at 9 n.2 (“Cable 21 STATE 115378 is the first of a series of
Cables implementing the Recalibration Policy.”) (emphasis added). In addition, it is hard to see
how the cable created legal consequences that harmed Plaintiffs because its most concrete effect
was to rescind prioritization guidance that Plaintiffs themselves contend was illegal. See Ex. E.
to TRO.
8
It bears mention that the extent of the Court’s equitable power to reserve visas is an issue
currently on appeal before the D.C. Circuit. See Goodluck v. Biden, No. 21-5263. But the Court
could order that the adjudication be provided forthwith on or before September 30. See, e.g.,
Iddir v. Immigration and Naturalization Service, 301 F.3d 492, 495 (7th Cir. 2002) (noting that
10
Accordingly, the Court turns to whether Plaintiffs can meet their burden to show a
substantial likelihood of success on the merits. A threshold question for both unlawful
withholding and unreasonable delay claims is whether Defendants had a legal duty to take the
withheld or delayed action. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63 &
n.1 (2004) (explaining that “the only agency action that can be compelled under the APA is
action legally required” and clarifying that, with respect to an unreasonable delay claim, “a delay
cannot be unreasonable with respect to an action that is not required”).
1. No Legal Duty Under Section § 1202(b)
Plaintiffs claim that Section 222(b) of the Immigration and Nationality Act, which lays
out the process for applying for a visa, places such a duty on the Department. Codified at 8
U.S.C. § 1202(b) under the heading “Other documentary evidence for immigrant visa,” this
section describes the documentation that applicants for immigrant visas must furnish to the
reviewing consular officer.
The last sentence of the section states: “All immigrant visa applications shall be reviewed
and adjudicated by a consular officer.” 8 U.S.C. § 1202(b). Plaintiffs argue that this sentence
establishes a nondiscretionary legal duty for the Department to adjudicate immigrant visa
applications. TRO at 3, 26. Defendants argue that § 1202(b) merely describes who adjudicates
visas (a consular officer), and does not create any nondiscretionary duty for “the Department to
schedule every DV selectee who initiates a visa case for an interview before a consular officer.”
Def.’s Opp’n at 5.
Maria Niculescu’s diversity visa application was processed and she was interviewed and
awarded permanent resident status all on the last day of the fiscal year).
11
Courts in this circuit have taken different approaches to this question in different
contexts. Plaintiffs’ view has prevailed in challenges to COVID-related policies that suspended
the issuance of diversity visas outright. See, e.g., Filazapovich v. Dep’t of State, 560 F. Supp. 3d
203, 235 (D.D.C. 2021) (Mehta, J.) (holding that §1202(b) imposes a nondiscretionary duty on
Defendants to adjudicate diversity visas); Rai v. Biden, 567 F. Supp. 3d 180, 195 (D.D.C. 2021)
(Chutkan, J.) (same). By contrast, Defendants’ view has prevailed where, as here, plaintiffs
challenged only the delay in adjudicating their particular applications. See, e.g., Pushkar v.
Blinken, 2021 WL 4318116 *1, *10 (D.D.C. September 23, 2021) (Kollar-Kotelly, J.) (finding
no nondiscretionary duty to schedule an individual applicant’s consular interview within a
particular timeframe and distinguishing Filazapovich on grounds that plaintiffs in that case
“challenged not only Defendants’ failure to adjudicate their individual visa petitions, but also the
Executive policies writ large that halted all diversity visa processing . . .”); Zarei v. Blinken,
2021 WL 9146060 *1, *1 (D.D.C. September 30, 2021) (Nichols, J.) (finding that § 1202(b),
read in context, concerns “who reviews visa applications rather than whether all such
applications must be reviewed (much less be reviewed by a certain time)”).9
Whether a suspension, or even a significant slowdown, of diversity visa adjudications
would constitute a violation of a nondiscretionary duty established under § 1202(b) or under the
broader visa processing framework established by the INA and its implementing regulations is
not a question before the Court in this case. The question before the Court with respect to
9
Perhaps reflecting this division, Plaintiffs’ reply brief recasts the argument in their TRO that §
1202(b) obligates the Department to adjudicate every visa application, instead arguing that §
1202(b) merely obligates the Department “to adjudicate” until 55,000 diversity visas have been
issued. Compare TRO at 3 (“There is no exception.”) with Plaintiffs’ Reply at 9 (disputing that
they asserted that Congress intended the Department to adjudicate “all DV cases”) (emphasis in
original). This reframing provides no help to Plaintiffs, as the Department appears poised to
reach or come close to the statutory cap of 55,000 diversity visas. See Ex. A to Def.’s Opp’n.
12
Plaintiffs’ unlawful withholding and unreasonable delay claims is whether, in the absence of a
suspension or slowdown, § 1202(b) places a nondiscretionary duty on the Department to review
and adjudicate Plaintiffs’ visa applications in particular before the September 30 deadline. See
Plaintiffs’ Reply at 16. The Court is persuaded that, read in context, the last sentence of §
1202(b) more likely dictates who reviews visa applications without creating a nondiscretionary
duty to adjudicate any particular application within a given timeframe.10 As such, the Court
finds that Plaintiffs have failed to carry their burden to clearly establish a substantial likelihood
that they will prevail in showing a nondiscretionary duty to support their unlawful withholding
and unreasonable delay claims.
2. No Unreasonable Delay Under TRAC Analysis
Even if Plaintiffs had established a legal duty to adjudicate their diversity visa
applications under § 1202(b) or elsewhere, they have not carried their burden to establish an
unreasonable delay using the factors identified in Telecommunications Research and Action
Center (TRAC) v. FCC, 750 F.2d 70 (D.C. Cir. 1984). Unlike an unlawful withholding claim,
which challenges “discrete” agency action, Norton, 542 U.S. at 62-63, an unreasonable delay
claim by nature requires review of “non-final agency action.” TRAC, 750 F.2d at 79 (internal
quotation omitted). Accordingly, “given the clear legislative preference for review of final
action, [courts] must be circumspect” in evaluating unreasonable delay claims, and should hear
10
Plaintiffs contend that language of § 1202(b) is part of a pattern of “affirmative language
throughout” the statutory framework. TRO at 2. Plaintiffs focus on 8 U.S.C. 1153(c)(1)(A)-(E),
which uses the word “shall” a number of times, but only to direct how the Attorney General will
determine immigrant preference under the program. Plaintiffs also point to 22 C.F.R. § 4281(a)
and 9 FAM § 504.9-2, TRO at 18, but these only discuss the process of adjudication after the
applicant appears for a consular interview. See 22 C.F.R. § 42.81(a) (“When a visa application
has been properly completed and executed before a consular officer . . .”); 9 FAM § 504.9-2
(“Once an application has been executed . . .) (emphasis added). None of this language requires
adjudication of specific applicants’ visa applications within a particular timeframe.
13
only cases of “clear right such as outright violation of clear statutory provision or violation of
basic rights established by a structural flaw.” Id. (internal quotation and formatting omitted).
The TRAC court identified six factors to guide the unreasonable delay analysis:
(1) the time agencies take to make decisions must be governed by a rule of reason;
(2) where Congress has provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling statute, that statutory scheme
may supply content for this rule of reason; (3) delays that might be reasonable in
the sphere of economic regulation are less tolerable when human health and welfare
are at stake; (4) . . . the effect of expediting delayed action on agency activities of
a higher or competing priority; (5) . . . the nature and extent of the interests
prejudiced by delay; and (6) the court need not find any impropriety lurking behind
agency lassitude in order to hold that agency action is unreasonably delayed.
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (internal
quotations omitted).
The D.C. Circuit has emphasized the importance of factor four. See Mashpee
Wampanoag Tribal Council v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). Specifically, even
when all other factors favored relief, the D.C. Circuit has denied relief where a petitioner seeks
“a judicial order putting the petitioner at the head of the queue” with “no net gain” because it
would simply “move all others back one space.” Id. (quoting In re Barr Laboratories, 930 F.2d
72, 75 (D.C. Cir. 1991) (formatting omitted).
This is Plaintiffs’ situation. In Khamrabaeva, as of September 5, 2022, 607 cases
associated with 1,767 applicants await scheduling at the U.S. Consulate in Almaty, and 285 of
those cases are before Plaintiffs in the scheduling order. Ex. A to Def.’s Opp’n ¶ 10. In
14
Elsadawy, 841 cases associated with 1,986 applicants await scheduling at the U.S. Embassy in
Abu Dhabi, and 641 of those cases are before Plaintiffs in the scheduling order. Ex. A to Def.’s
Joint Opp’n ¶ 19. In Vokhobov and Mavlonova, 618 cases associated with 1,905 applicants await
scheduling at the U.S. Embassy in Tashkent, and 179 and 242 of those cases are before Plaintiffs
in each case, respectively, in the scheduling order. Id. ¶¶ 25, 31. In Daif, 694 cases associated
with 1,661 applicants await scheduling at the U.S. Embassy in Riyadh, and 669 of those cases
are before plaintiffs in the scheduling order. Id. ¶ 37.
Defendants repeatedly argue that TRAC factor four favors them because moving
Plaintiffs to the front of the line is a “zero-sum game.” Def.’s Joint Opp’n at 4, 6, 8, 10.
Plaintiffs contend that it does not matter how many cases are before theirs in the scheduling
order because the Department has not been scheduling cases in rank order, and accordingly they
do not seek to skip the line but rather to reclaim their “rightful place” in it. 11 Plaintiffs’ Reply at
2, 4, 5. Plaintiffs’ argument ignores that, even assuming everyone was scheduled out of rank
order, they nonetheless seek exactly what the D.C. Circuit refused: a judicial order moving them
up, and therefore others back, with no net gain. Mashpee Wampanoag Tribal Council, 336 F.3d
at 1100; see also, e.g., Varghese v Blinken, 2022 WL 3016741 *1, *6 (D.D.C. July 29, 2022)
(finding that TRAC factor four weighs against plaintiff seeking visa adjudication because,
11
Plaintiffs only fully developed and supported this argument in their reply brief, so it is not
properly before the court. See Plaintiffs’ Reply at 15 (alleging for the first time with new
evidence that, writ large, “Defendants intentionally deviated from processing FY-2022 diversity
visa applications by case number rank in early December 2021”). Regardless, Plaintiffs fall
short of meeting their burden, which is heavy in the context of a motion for emergency relief, in
the face of unequivocal sworn testimony from agency officials. See Declaration of Morgan
Miles, Ex. A to Def.’s Joint Opp’n, ¶ 4-10 (explaining how regional rank order, in conjunction
with the timing of applicants’ submissions and availability at relevant consular posts, determines
interview scheduling); Declaration of Rebecca Austin, Ex. D to Def.’s Joint Opp’n ¶ 2, ECF No.
9-5 (same).
15
“[a]lthough [plaintiff] argues that he is not asking . . . to be put ahead in line of others . . . he has
not provided sufficient facts showing that the Court granting relief would do anything more than
expedite [this] case at the expense of similarly waiting applicants”) (internal quotations omitted);
Khan v. Blinken, 2021 WL 5356267 *1, *4 (D.D.C. November 17, 2021) (rejecting plaintiff’s
argument that “she is not asking for her fiancé to be put ahead in line of others because he is
already at the front of the line, simply awaiting the consular officer’s completion of
administrative processing” on grounds that “[p]rocessing capacity is presently a zero-sum game,
and granting Plaintiff’s request to expedite would necessarily mean additional delays for other
applicants”) (internal quotations omitted).
Accordingly, even if Plaintiffs could establish that the Department has a legal duty to
adjudicate their diversity visa applications before September 30, and even if they could establish
that the other TRAC factors favor them, 12 they have failed to demonstrate a substantial likelihood
that they will prevail in their unreasonable delay claim.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a temporary restraining order in each
case is DENIED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
12
This is dubious at best with respect to TRAC factor one in particular. According to the
affidavit of Defendant Morgan Miles, KCC creates the scheduling order using an applicant’s
regional rank order and the date of the visa number allocation. Ex. A to Def.’s Joint Opp’n ¶ 8.
Using that order, applicants are actually scheduled based on availability at the relevant consular
post, id. ¶ 9, which is a function of personnel and resource constraints in response to global
events. Ex. B to Def.’s Joint Opp’n ¶ 25. Plaintiffs argue that this scheduling process is
unreasonable in light of the Department’s policies and regulations concerning visa application
processing and adjudication. TRO at 20-21; Plaintiffs’ Reply at 17-18. It is far from clear that
Plaintiffs are substantially likely to win this argument.
16
Dated: September 23, 2022 RUDOLPH CONTRERAS
United States District Judge
17