Nine Iraqi Allies Under Serious Threat Because of Their Faithful Service to the United States v. Kerry , 168 F. Supp. 3d 268 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NINE IRAQI ALLIES UNDER
SERIOUS THREAT BECAUSE OF
THEIR FAITHFUL SERVICE TO
THE UNITED STATES,
Civil Action No. 15-300(GK)
Plaintiffs,
v.
HON. JOHN F. KERRY, et al.
Defendants,
AMENDED MEMORANDUM OPINION
CONTENTS
I . BACKGROUND • . • • . • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • . • • • • • . • • . • • • 4
A. The Special Inunigrant Visa Programs ........................... 4
B. Plaintiffs' Circumstances .................................... 10
II . STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
I I I • ANALYSIS . . . . . . . . . . . . . • . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 2 0
A. Plaintiffs' Motion for Leave to File Supplemental Declaration 20
B. Counts 3-6: Failure to Adjudicate Plaintiffs' Applications ... 22
1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. The Doctrine of Consular Nonreviewability ...................... 28
3. Judicially Manageable Standards to Enforce a Non-discretionary
Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4. The APA and the Mandamus Act .................................... 59
C. Counts 1 & 2: Failure to Protect ............................. 61
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
...
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 to the United States
pursuant to Iraqi and Afghan Special Immigrant Visa programs that
Congress authorized to provide refuge for Iraqis and Afghans who
face or have faced serious threats because of their past faithful
service to the United States. See Refugee Crisis in Iraq Act of
2007 ("RCIA"), 8 U.S.C. § 1157 note at§§ 1241-49; Afghan Allies
Protection Act of 2009 ("AAPA"), 8 U.S.C. § 1101 note at §§ 601-
02. 1 Because of the ongoing risk of reprisal they face, Plaintiffs
have been granted leave to proceed by pseudonym in this action. 2
See Order Granting Motion to Proceed by Pseudonym [Dkt. No. 2].
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
1 The RCIA and AAPA are codified as notes to 8 U.S.C. §§ 1157 and
1101, respectively. The Court cites to provisions of these acts
with the relevant act's abbreviation and section number (e.g.,
RCIA § 1241) throughout.
2The relevant pseudonyms and factual distinctions in each of the
Plaintiffs' situations are set forth below.
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•.
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 1Dkt. 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].
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..... ' .. ····; ..
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
granted and the Government's Motion to Dismiss shall be granted
with respect to Counts 1 & 2 and denied with respect to Counts 3-6
(except insofar as those claims relate to Alpha, Bravo, and Delta) .
I . BACKGROUND
A. The Special Immigrant Visa Programs
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:
(A) is a citizen or national of Iraq;
(B) was or is employed by or on behalf of the United States
Government in Iraq, on or after March 20, 2003, for not less
than one year;
(C) provided faithful and valuable service to the United
States Government, which is documented in a positive
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recommendation or evaluation . . . from the employee's senior
supervisor or the person currently occupying that position,
or a more senior person, if the employee's senior supervisor
has left the employer or has left Iraq; and
(D) has experienced or is experiencing an ongoing serious
threat as a consequence of the alien's employment by the
United States Government.
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 of fer
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
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.... '·
. . .... ··:· .
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
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or removal of applicants from Afghanistan with only slight
differences in phrasing) .3
The RCIA and AAPA require Defendants to issue reports to
Congress regarding the number and status of SIV applications and
improvements to the process for considering SIV applications. See
RCIA § 1248 (a), (f); APAA § (b) (11). Many of these Joint Reports
from the Departments of State and Homeland Security (referred to
throughout as "Joint Reports") , which Plaintiffs summarized in
their Amended Complaint and submitted as exhibits to their
Opposition, provide insight into the process by which Defendants
review Iraqi and Afghan SIV applications. See Amended Compl. ~~
44-50; Pls.' Exs. L-W [Dkt. Nos. 43-4 through 43-15].
As each of the Joint Reports states, "SIV applications move
through 14 steps, in the following four stages: Chief of Mission
( "C.OM") Application Process; Form I-360 Adjudication; Visa
Interview; and Visa Issuance." E.g., Pls.' Ex. Lat 2. Chief of
Mission Approval (which is granted on the basis of the Chief of
Mission Application and is referred to by the Parties as "COM
3 "The Secretary of State, in consultation with the heads of other
appropriate Federal agencies, shall make a reasonable effort to
provide an alien described in subparagraph (A), (B), or (C) of
paragraph (2} who is seeking special immigrant status. under this
subsection protection or to immediately remove such alien from
Afghanistan, if possible, if the Secretary determines, after
consultation, that such alien is in imminent danger." AAPA
§ 602 (b) (6).
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Approval") is required by the APAA and RCIA. RCIA § 1244 (b) (4);
AAPA § 602(b) (2) (D). Both statutes state that the relevant Chief
of Mission in Iraq or Afghanistan must "conduct a risk assessment
of the alien and an independent review of records maintained by
the United States Government or hiring organization or entity to
confirm employment and faithful and valuable service to the United
States Government prior to approval of a petition under this
section." RCIA § 1244 (b) (4) (A); AAPA § 602 (b) (2) (D) (i).
Once an applicant has received COM Approval, he or she must
enter the second stage of the process by submitting a completed
Form I-360 to the Department of Homeland Security's U.S.
Citizenship and Immigration Services ("USCIS"). ~, Pls.' Ex. R
at 3. If USCIS approves the petition, it is sent to the Department
of State's National Visa Center ("NVC"), and the applicant begins
the Visa Interview Process stage. Id.
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. Id. In this stage, the applicant must
submit certain documents to the NVC and schedule an interview at
the appropriate U.S. Embassy. Id.
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:
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. . .~.
:' ..
12. Applicant is interviewed by consular officer on the
scheduled appointment date. Administrative
processing is initiated following the interview.
13. The applicant's case undergoes administrative
processing.
E.g., Pls.' Ex. oat 3. 4
"Upon completion of administrative processing," the
applicant enters the fourth and final stage: Visa Issuance.
Id. This last stage has just one step in which a "visa is
issued if [the] applicant is eligible." Id. However, the Joint
Reports note that by this point, "[i] n some cases, the
passport or medical exam will have expired and require renewal
by the applicant." Id.
4 Although the Joint Reports describe "administrative processing"
as a necessary step in the SIV application process that must follow
the consular interview and precede visa issuance, see~, Pls.'
Ex. 0 at 3, State Department regulations require consular officers
to "either issue or refuse" any visa immediately "[w] hen a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of [the
Immigration and Naturalization Act] and [that Act's] implementing
regulations[.]" 22 C.F.R. § 42.81 (2015).
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 Nl.
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.
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B. Plaintiffs' Circumstances
Plaintiffs' Amended Complaint brings claims on behalf of 12
Plaintiffs -- 8 Iraqi and 4 Afghan citizens -- proceeding under
the following pseudonyms: Renaldo, Alpha, Bravo, Delta, Foxtrot,
India, Juliet, Alice, Hotel, Lima, Kilo, and Mike. 5
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." See Poellot Deel. [Dkt. No. 43-
1); Pls.' Exs. C-K [Dkt. Nos. 44-2 through 44-10). The Government
contends, counterintuitively, that while Plaintiffs' applications
may still be granted following "administrative processing," the
applications have, in fact, been finally refused. See Dybdahl Deel.
5 Plaintiffs' initial Complaint [Dkt. No. 3) included the claims
of additional Plaintiffs under the pseudonyms Frodo, Charlie,
Echo, and Golf. Frodo and Echo have since been issued visas.
Gov't's Mot. at 4-5. Charlie and Golf's applications have been
refused under 8 U.S. C. § 1182 (a) (3) (B) , which provides that
individuals who have any of the various enumerated ties to
terrorist activities are ineligible for admission to the United
States. Id. The Parties agree that Frodo, Echo, Charlie, and Golf
are no longer Plaintiffs in this suit. See generally Amended Compl.
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• •· .. '
...·
[Dkt. No. 36-1] . 6 Disagreements of this type are flagged in the
paragraphs that follow and are discussed more thoroughly in
subsequent sections of this Memorandum Opinion.
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. Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("the district court
may consider materials outside the pleadings in deciding whether
to grant a motion to dismiss for lack of jurisdiction"); Fed. R.
Civ. P. 12(h) (3) ("If the court determines at any time that it
6 All except one of the refusals relevant to this Motion the
Government claims to have issued were issued under 8 U.S. C. §
120l(g), which provides:
No visa or other documentation shall be issued to an
alien if (1) it appears to the consular officer, from
statements in the application, or in the papers
submitted therewith, that such alien is ineligible to
receive a visa or such other documentation under section
1182 of this title, or any other provision of law,
(2) the application fails to comply with the provisions
of this chapter, or the regulations issued thereunder,
or (3) the consular officer knows or has reason to
believe that such alien is ineligible to receive a visa
or such other documentation under section 1182 of this
title, or any other provision of law .
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lacks subject-matter jurisdiction, the court must dismiss the
action.").
1. Renaldo
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)
states that as of September 1, 2015, Ronaldo' s application had
been refused under 8 U.S.C. § 120l(g). Dybdahl Deel. ~ 5. According
to the Department of State's Consular Electronic Application
Center Case Status Tracker ("Case Status Tracker"), which allows
applicants to verify the status of their SIV applications, Pls.'
Ex. X [Dkt. No. 43-16], as of September 11, 2015, Ronaldo's
application remained in "administrative processing," Pls.' Ex. C.
[Dkt. No. 44-4].
Despite the statement from the Government's own declarant
that Ronaldo' s visa had been refused, the Government's Motion
inexplicably asserts four times that Ronaldo has been issued a
visa, rendering his claims moot. Gov't's Mot. at 1 n.1
(inaccurately citing Dybdahl Deel. for proposition that Ronaldo
had been issued a visa); id. at 10 (same); id. at 8 (repeating
claim without citation) ; id. at 9 (repeating claim without
citation) . In their Opposition, Plaintiffs correct the
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Government's apparent error as to Ronaldo's application status,
noting that Ronaldo has not been issued a visa. Pls.' Opp'n at 3
n.3. The Government's Reply does not acknowledge, correct, or even
address the error.
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. See Ramos-Mrosovsky Deel. [Dkt. No. 48-1]. The
Immigrant Visa Unit responded:
Your client's case remains pending additional
administrative processing, which must be completed
before a final determination can be made on his Special
Immigrant Visa (SIV) application. As soon as this
administrative processing stage is finalized, we will
immediately contact you with further details. No further
action is required from your client at this time.
Supp. Deel. 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 Deel."), which, like the previous Dybdahl
Declaration, states that Ronaldo's visa application "remains
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.~.
refused under [] 8 U.S.C. § 120l(g) ." Second Dybdahl Deel. [Dkt.
No. 49-1).
Upon this record, it is clear that Ronaldo has not received
a visa.
2. Alpha
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.
3. Bravo
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 Dybdahl Declaration states that
as of September 1, 2015, Bravo's application had been refused under
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' ~ .. :·.
8 U.S.C. § 1201(g), and the Government's Motion states that Bravo's
application had received a "final" refusal as of that date. Gov't's
Mot. at 10; Dybdahl Deel. ~ 7. However, on September 4, 2015, Bravo
and his family members were issued visas. Pls.' Opp'n at 3 n.3;
Second Dybdahl Deel. at ~ 7. Thus, Bravo's claims are moot.
4. Delta.·
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
Deel. 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 Deel. at ~ 9. 7 Thus, Del ta' s
claims are moot.
5. Foxtrot, India, Juliet, and Alice
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.
7 Plaintiffs' Opposition -- filed September 25, 2015 -- fails to
take account of the change in Delta's status.
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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 Deel. ~ 14. However, he and his
family were not permitted to board a flight to the United States,
and the visas were subsequently revoked. Id.Juliet first applied for COM Approval on March 29, 2011, and
completed his visa interview on March 1, 2 012. 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 Deel. at ~~ 11, 14, 15, and 19;
see also Second Dybdahl Deel. at ~~ 11, 14, 15, and 19 (repeating
same as of September 30, 2015). The Government's Motion states
that Foxtrot, India, Juliet, and Alice's applications had received
"final" refusals as of September 1, 2015. Gov't's Mot. at 10.
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.
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. . .~. . ....
.-
:'. . ·;.,:·.
6. Hotel and Lima
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.
§ 120l(g). Dybdahl Deel. at ~~ 13 and 17; see also Second Dybdahl
Deel. at ~~ 13 and 17 (repeating same as of September 30, 2015).
The Government's Motion states that Hotel and Lima's
applications had received "final" refusals as of September 1, 2015.
Gov't's Mot. at 10. According to the State Department's Case Status
Tracker, as of September 24, 2015, Hotel and Lima's applications
remained in "administrative processing." Pls.' Exs. G and J. Again,
the Parties disagree as to whether the "administrative processing"
designation is consistent with the statement that the applications
have been finally refused.
7. Kilo
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
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application process, Kilo does not have a complete SIV application
pending before the State Department. See Dybdahl Deel. ~ 16; Second
Dybdahl Deel. ~ 16.
8. Mike
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 Deel. 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) , 8 and was returned to users
for review and possible revocation of COM Approval. Id. According
to the Case Status Tracker, as of September 24, 2015, Mike's
application was listed as "At NVC [,] " which refers to the State
Department's National Visa Center. Pls.' Ex. D [Dkt. No. 44-3].
II. STANDARD OF REVIEW
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. Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015). In deciding whether to grant a motion to dismiss for
lack of jurisdiction, the Court must "accept all of the factual
allegations in [the] [C] omplaint as true [.]" Jerome Stevens
8 It is far from clear what relationship the cited statute has to
Mike's Afghan SIV application, as .8 U.S.C. § 1182(a) (5) (A)
specifies the grounds for denying entry to "alien[s] who seek[] to
enter the United States for the purpose of performing skilled or
unskilled labor[.]"
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Pharm., 402 F.3d at 1253-54 (quoting United States v. Gaubert, 499
U.S. 315, 327 (1991)) (internal quotation marks omitted). However,
"[w] here necessary to resolve a jurisdictional challenge under
Rule 12(b) (1), the court may consider the complaint supplemented
by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts." Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1129 (D.C. Cir. 2015) (internal citation and quotation marks
omitted).
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." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a
claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint."
Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success . [,] must assume all the allegations in
the complaint are true (even if doubtful in fact) [, and]
must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged." Aktieselskabet AF 21. November
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'·"; ...
•.. ·
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted) . A complaint will not
suffice, however, if it "tenders 'naked assertion[s]' devoid of
'further factual enhancement."' Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in
Iqbal) .
III. ANALYSIS
A. Plaintiffs' Motion for Leave to File Supplemental
Declaration
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. Deel. Ex. A [Dkt. No. 48-2]. Plaintiffs
also ask to file a Declaration explaining the e-mail's origin.
Supp. Deel. [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, see supra section I.B.1., the
Government's Motion erroneously states four times that Ronaldo has
been issued a visa. That is clearly incorrect as shown in the
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e-mail, which removes the confusion caused by the Government's
mistake.
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.
-21-
...
~. . ..-.. '
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. See
Supp. Deel. Ex. A [Dkt. No. 48-2]; Second Dybdahl Deel. [Dkt.
No. 49-1]
B. Counts 3-6: Failure to Adjudicate Plaintiffs'
Applications
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." Id. Counts 5 and 6 are brought under
the APA's grant of authority to "compel agency action unlawfully
withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1).
Plaintiffs contend that the APA requires Defendants to
finally adjudicate their applications within a "reasonable
time[.] /1
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
-22-
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 th~ doctrine of consular nonreviewabili ty, 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.
-23-
...
•.. ·.
~. '
1. Standing
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. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
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 als9 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
-24-
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 and instead, remain in "administrative
processing," see infra section III. B. 2. a. ; Mike and Kilo's SIV
applications likewise await additional actions by the Government
and thus, have not been finally refused, see infra section
III.B.2.c.; Alpha, Bravo, and Delta's applications have been
granted, and thus, their claims are moot, see infra section
III.B.2.a. Accordingly, Ronaldo, Foxtrot, India, Juliet, Alice,
Hotel, Lima, Mike, and Kilo have suffered an injury in fact: the
failure to receive final decisions on their SIV applications within
a reasonable period.
-25-
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 (i.e., Defendants' failure to
adjudicate the applications). Thus, Plaintiffs have satisfied the
causation prong of the standing inquiry.
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 that duty
is non-discretionary and must "ordinarily" be completed within
nine months. See infra section III.B.3.
-26-
....
The Government also argues that the Court may not redress
Plaintiffs' injuries because courts are not free to fash{on their
own "coercive sanctions" to bring about compliance with statutory
deadlines. See Gov't's Reply at 15 (citing, inter alia, United
States v. James Daniel Good, 510 U.S. 43, 63 (1993)). In that case,
the Supreme Court overturned a Court of Appeals' holding that
failure to comply with certain timing requirements applicable to
asset forfeiture mandated dismissal of the forfeiture action. 510
U.S. at 63. The Supreme Co'urt characterized the lower court's
dismissal of the Government's action as the creation of a "coercive
sanction" on the Government's failure to meet certain statutory
timing directives. Id.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. See 5 U.S.C. § 706 (1); 28 U.S.C.
§ 1361. Such an order would directly redress Plaintiffs' injury
caused by the Government's failure to decide.
In short, Plaintiffs have been injured by the failure to
obtain final decisions on their SIV applications, that injury is
-27-
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. Lujan, 504
U.S. at 560-61.
2. The Doctrine of Consular Nonreviewability
As already discussed, the Government's major argument is that
Plaintiffs' applications have already been finally refused and the
doctrine of consular nonreviewability precludes any further review
of those decisions. This fact, the Government contends, deprives
Plaintiffs of standing to bring their claims, and deprives the
Court of jurisdiction to hear them.
The Government summarizes the core of its argument in its
opening brief:
Because each and every Plaintiff received final action
under 8 U.S.C. § 1201(g), a valid statutory basis of
ineligibility (see generally Ex. 1, Dybdahl Declaration
(listing dates of refusals)), the doctrine of consular
nonreviewability bars Plaintiffs' requests for review of
final decisions of a consular officer. See Saavedra
Bruno [v. Albright, 197 F. 3d 1153, 1156 (D. C. Cir.
1999)]. Thus, Plaintiffs' requests for adjudication of
their applications, and communication of the results,
can only be viewed as confused or disingenuous. See
Compl. at· Prayer for Relief ~ 3. Indeed, what the
Plaintiffs truly appear to seek is judicial re-
adjudication -- or review -- of these final decisions.
The doctrine prohibits this.
Gov't's Mot. at 24.
-28-
a. Status of Plaintiffs' Applications
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. § 120l(g)
and/or other grounds." Gov' t' s Mot. at 13; id. at 14 ("Each refusal
constituted a final decision as a matter of law."); id. ("like
Plaintiff Alpha, the other Plaintiffs have indeed received final
agency action -- denials of their visa applications under 8 U.S.C.
§ 120l(g)"); see also Gov't's Mot. at 23, 24. Accordingly, the
Government contends that "what the Plaintiffs truly appear to seek
is judicial re-adjudication--or review--of these final decisions."
Gov't's Mot. at 24 (emphasis in original).
However, the facts do not support the Government's repeated
and emphatic assertions.
As discussed in section I.B. above, Plaintiffs Alpna, 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. § 120l(g), which provides in relevant part that consular
-29-
..
. :·.
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. E.g., Gov' t' s Reply at 14
("all Plaintiffs who have made SIV applications have already
received final decisions" (emphasis in original)); Dybdahl Deel.
at ~~ 5, 11, 13, 14, 15, 17, 19.
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."
See Pls.' Exs. E-K (screen shots of State Department's Case Status
Tracker showing these seven Plaintiffs' application status as
"administrative processing," as of September 24, 2015).
In support of their contention that their applications have
not received a final decision, Plaintiffs put forth a significant
body of evidence.9 First and foremost, the Government's own Case
Status Tracker states that Plaintiffs' applications remained in
"administrative processing" as of September 24, 2015. Pls.'
Exs. E-K.
9 Again, while Courts do not ordinarily make factual findings at
the motion-to-dismiss stage, Aktieselskabet, 525 F.3d at 17, the
Court must do so here because the status of Plaintiffs'
applications determines the Court's jurisdiction to entertain
their claims. See Saavedra Bruno, 197 F.3d at 1162; Jerome Stevens
Pharm., 402 F.3d at 1253-54 (holding that courts may look beyond
pleadings in the complaint to ascertain their own jurisdiction) .
-30-
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. Id. at 13. In support of its position, the Government
points to regulations and State Department guidance documents
indicating that consular officers must grant or deny a visa
application immediately once the application is complete. 22 C.F.R
§ 42.81(a). ("When a visa application has been properly completed
and executed before a consular officer . . the consular officer
must either issue or refuse the visa ."). The State
Department's Foreign Affairs Manual ("FAM") adds, "There is no
such thing as an informal refusal or a pending case once a formal
application has been made." 9 FAM 42.81 Nl.
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. See Gov't's Mot. at 15; Gov't's Reply at 7 ("It is to the
benefit of the visa applicant that, even after a final [§ 1201(g)]
refusal, a consular officer may continue to consider a case (i.e.,
to engage in further administrative processing) to potentially
further adjudicate the visa application. But a consular officer's
-31-
discretionary decision to allow for further administrative
processing after a [§ 1201 (g)] refusal does not create any new
legal duty, and does not give an applicant any basis to sue to
expedite that post-refusal processing.").
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.
~, Pls.' Ex. Lat 3-4 [Dkt. No. 43-4]. The Joint Reports state
that at step 12, which is the interview stage, the "[a]pplicant is
interviewed by [a] consular officer on the scheduled appointment
date [,]" and "[a] dministrative processing is initiated following
-32-
•. . -.~.
•.. ·.
.
the interview." ~, id. At step 13 "[t] he applicant's case
undergoes administrative processing [.]" Id. At step 14, "[u] pon
completion of administrative processing, [the] applicant is
instructed to obtain a medical exam. The visa is issued if [the]
applicant is eligible." E.g. , id. Nowhere do the Joint Reports
indicate that a final decision is made before "administrative
processing" begins.
The Joint Reports go on to note that "[e]ven if an applicant
has acted promptly in each of the applicant-controlled steps that
precede step 13 of the SIV application process
administrative processing] , applications may be pending longer
than nine months for completion of administrative processing."
~,id. at 4-5. 10 The section concludes, "Although step 13 is
lengthy, process enhancements have resulted in improved
efficiency." ~, id. at 5. The other Joint Reports contain
substantially the same statements. See Pls.' Exs. L-W. 11
10According to the Joint Report for SIVs issued between April 1,
2014 and March 31, 2015, administrative processing took an
average of 153 business days. Pls.' Ex. Lat 4.
11 The Joint Reports' invocation of the nine month timeline is
itself an indication that the Government understands
"administrative processing" to constitute a pre-cursor to a final
decision. RCIA § 1242 ( c) ( 2) and AAPA § 602 (b) ( 4) (A) state that
"all steps under the control of the respective departments
incidental to the issuance of such visas, . , . 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."
-33-
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. § 120l(g)J until: We
complete administrative processing. We will contact you when it is
finished." Iraqi Refusal Notice, Pls.' Ex. BB (emphasis added).
This artfully worded letter appears calculated to obtain the
benefits of consular reviewability and to comply with internal
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.]"
Id. However, the Government does count delays due to
"administrative processing" toward the nine-month time line, see
Pls.' Exs. L-W, which further indicates that "administrative
processing" is part of the visa review process and not mere
reconsideration of applications, which have already been denied.
-34-
....
.· :
State Department regulations 1 2 by indicating that a decision has
been made. But the text that follows the word "until" makes clear
that no final decision on the application will occur until
"administrative processing" is complete . 1 3
The notice provided to applicants at the Kabul Embassy
similarly advises applicants that their application "needs further
administrative processing." See Afghan Refusal Notice, Pls.
Ex. CC. It states, "We cannot give you a definitive date when the
processing will be completed, and it will likely take several
months or more." Id. Again presumably attempting to trigger the
doctrine of consular nonreviewability, the Afghan Refusal Notice
also states that the Notice "constitutes a denial of a visa" under
8 U.S.C. § 1201(g). Id.However, if "administrative processing" is a necessary step
in the SIV application process, the failure to receive a visa
before "administrative processing" is completed is not a denial at
all. In fact, if an applicant were somehow to receive a visa in
12 See 22 C.F.R § 42.Sl(a); 9 FAM 42.81 Nl.
13 Another district court has held that a similarly equivocal
statement did not constitute a denial. Assad v. Holder, Civ. No.
2:13-00117, 2013 WL 5935631, at *l & *4 (D.N.J. Nov. 1, 2013)
("[L]etter [received by visa applicant that] stated that the case
required 'Administrative Review' and that 'new information, when
available, will be communicated to you in writing'" was held to
"clearly indicate that the decision on [plaintiff's] visa [was]
still pending and not final.").
-35-
.
advance of administrative processing, that step would be
premature. The Government has never argued that "administrative
processing" could be completed immediately after the interview.
Indeed the Joint Reports show that "administrative processing"
usually requires many months to finish. See e.g., Pls.' Ex. S (as
of July 15, 2014, the average Afghan SIV application spent 145
business days in "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:
You will see one of the following status indicators
appear:
Administrative Your case is currently
Processing
undergoing additional administrative processing. This
processing can take several months to be completed~ You
do not need to contact us. We will contact you with
further instructions once this processing stage is
finalized.
Issued - Your visa has been issued and we are preparing
the return of your passport to you using the prepaid
courier airway bill you provided to us during your
interview. You will receive an email from us with your
shipment tracking number as soon as your visa has been
posted in the mail.
Refused - Your visa application has been refused. Please
see the letter you received during your interview, or by
mail, for further details.
-36-
Pls.' Ex. X at 2 (available at http://iraq.usembassy.gov/
administrative-processing.html) . 14
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 Deel. at ~ 7 . 15
The Second Dybdahl Declaration states that just three days
later, on September 4, 2015, a consular officer issued visas to
14 See also Pls.' Opp'n at 16 (citing other portions of the Baghdad
Embassy's website stating, among other things, "We initially
refuse most immigrant visa applications under [8 U.S.C. § 1201(g)].
There is usually no need to worry: it is almost always a temporary
refusal." (emphasis in original) (quoting Pls.' Ex. AA (available
at http://iraq.usembassy.gov/221g/what-does-a-22lg-refusal-
mean.html)).
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 Nl. An application that
received only "temporary refusal" would seem to remain pending.
15It bears repeating that the Dybdahl Declaration also states that
the applications of seven other Plaintiffs had been "refused"
despite the Case Status Tracker's indication that they remained in
"administrative processing." Dybdahl Deel. ~~ 5, 11, 13, 14, 15,
17, 19; Pls. Exs. E-K. The record does not include a Case Status
Tracker entry for Bravo during this three-day period, but from
Plaintiffs' allegations and the facts in the record, it would seem
that between August 31 and September 4, 2015, Bravo's application
was in "administrative processing."
-37-
. . -.~.
Bravo and his family members. Second Dybdahl Deel. ~ 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.
In the Government's view, when Bravo left the Baghdad
Consulate on August 31, 2015, his visa had been finally refused
under 8 U.S.C. § 120l(g). In light of the Government's Joint
Reports, this characterization strains credulity. Gov't's Mot.
at 9. Plainly, Bravo's application--like those currently
undergoing "administrative processing"--remained under
consideration on August 31, 2015, and the Government only reached
a final decision on 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:
Your client's case remains pending additional
administrative processing, which must be completed
before a final determination can be made on his Special
Immigrant Visa (SIV) application. As soon as this
administrative processing stage is finalized, we will
immediately contact you with further details. No further
action is required from your client at this time.
-38-
... ..
.. ····;
Pls.' Supp. Deel. 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. 1 6
The Government argues that because 8 U.S.C. § 120l(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
16In a curious passage of its opening brief, the Government asserts
that "[i]n an effort to manufacture jurisdiction, Plaintiffs
equivocate, selectively substituting the term 'administrative
processing' for adjudication where it suits them." Gov't's Mot. at
13. But , Plaintiffs have not created the term "administrative
processing." The Government has told Plaintiffs in e-mails,
letters, and the State Department's own Case Status Tracker that
their applications remain in "administrative processing."
Plaintiffs take "administrative processing" to mean what the
Government says it means in its reports to Congress and on its
Embassy website: one of 14 steps that must be completed before an
SIV may be issued.
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. See Gov't's Reply at 10 ("It is
understandable as a practical matter that the State Department's
references to 'administrative processing' in various contexts may
create confusion. But the use of the term 'administrative
processing' following a visa refusal does not, in any way, nullify
the refusal or render it non-final as a matter of law.").
-39-
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,
whi.ch 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 applications were refused. As
a matter of law, the inquiry ends there."). The Court disagrees.
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); see also 9 FAM 42.81 Nl. However, it
is clear that visa applications are not always being finally
refused in any meaningful sense immediately upon presentation of
-40-
a completed application. 17 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 Nl,
simply does not accord with Defendants' practices, as the record
demonstrates.
The Government also cites 8 U.S.C. § 120l(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. See 8 U.S.C. § 1201(g) ."). But
§ 1201(g) merely contains the (expansive) criteria for refusing an
application; it does not establish when or whether, as a matter of
law, an application has been refused.
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
Van Ravenswaay v. Napolitano, 613 F. Supp. 2d 1, 5 (D.D.C. 2009)).
17 Indeed, at least one other District Court has reached the same
conclusion. See Schutz v. Secretary, Department of State, No. 6:11-
cv-1296-0rl-31, 2012 WL 275521, at *2-4 (M.D. Fla. Jan. 31, 2012)
(holding that 22 C.F.R. § 42.81 did not render application
"refused" when applicant was not issued visa and only explanation
was reference to broad statute stating many grounds for denial) .
-41-
The Government's argument--and the case it cites--rest upon
the premise that that Plaintiffs seek to challenge elements of a
final decision with which they disagree. Van Ravenswaay, 613 F.
Supp. 2d at 4 (holding that doctrine of consular nonreviewability
precluded action useeking judicial review regarding the action of
the consul" when the consul had denied plaintiff's visa
application) . But for the reasons already stated, Plaintiffs
applications remain pending and have not been finally denied. Thus,
Van Ravenswaay offers no aid to the Government's case. Moreover,
Plaintiffs are not challenging the substance of any decisions made
by the Government.
The Government also makes much of a passage in Justice
Kennedy's concurrence in Kerry v. Din, 135 S.Ct. 2128, 2141 (2015),
in which he states that the Government satisfies any due process
duty owed to visa applicants and their citizen relatives when it
cites the statutory basis for a visa application's denial. But
again, the Government's reliance is misplaced. Plaintiffs do not
contend that they were entitled to a more fulsome explanation of
the Government's decision on each of their SIV applications
they merely claim that they are entitled to a decision. 18
18The Government also looks to Svensborn v. Keisler, No. C07-5003
TEH, 2007 WL 3342751, at *4 (N.D. Cal. Nov. 7, 2007) and Toor v.
Clinton, No. 1:09CVF2790WWGSA, 2009 WL 1582900, at *4-*5 (E.D.
Cal. June 4, 2009) for support. In both, the court considered
whether the plaintiffs could bring an action to compel
-42-
. . ... ~.
The Government next claims that its denial of the SIV
applications of two Plaintiffs named in the initial Complaint, but
not in the Amended Complaint, somehow indicates that the remaining
Plaintiffs' applications have been denied:
Plaintiffs do not deny, and cannot deny, that since the
outset of this action, two of the nin~ original
Plaintiffs have been refused visas on terrorism-related
grounds. See Dybdahl Deel. at 3, 4-5 (discussing visa
refusals of Plaintiffs Charlie and Golf under 8 U.S.C.
§ 1182 (a) (3) (B)). Yet Plaintiffs' original Complaint,
ECF No. 1, made the same arguments for Plaintiffs Charlie
and Golf that Plaintiffs continue to make for all others
in this case. But there is no question, and Plaintiffs
make no argument, that Defendants can somehow ignore
their statutory duty under 8 U.S.C. § 1182(a)
including subsection (a) (3) (B) - - which prohibits the
issuance of visas to, inter alia, persons who engage in
terrorist activities.
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 agree that they received
final decisions on their applications after they filed their
initial Complaint and, as already noted, are not seeking review of
the substance of the decision. See Compl. (filed February 26,
2015); Dybdahl Deel. ~~ 8, 12 (Charlie's application denied under
reconsideration of their visa applications. In the case at hand,
however, Plaintiffs do not ask for reconsideration because they
have not yet received final decisions on their SIV applications.
Accordingly, Svensborn and Toor are inapplicable.
-43-
§ 1182(a) (3) (B) on May 7, 2015 and Golf's application denied under
§ 1182 (a) (3) (B) on June 28, 2015).
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.
-44-
b. Consular Nonreviewability
In its seminal case on consular nonreviewability, our Court
of Appeals explained the doctrine as follows:
In view of the political nature of visa determinations
and of the lack of any statute expressly authorizing
judicial review of consular officers' actions, courts
have applied what has become known as the doctrine of
consular nonreviewability. The doctrine holds that a
consular official's decision to issue or withhold a visa
is not subject to judicial review, at least unless
Congress says otherwise.
Saavedra Bruno, 197 F.3d at 1159. In an earlier, terser statement
of the doctrine, the Court noted that "a consular officer could
make such a decision [to deny a visa] without fear of reversal
since visa decisions are nonreviewable." Castaneda-Gonzalez v.
Immigration & Naturalization Serv., 564 F.2d 417, 428 n.25 (D.C.
Cir. 1977).
The doctrine preceded passage of the APA and constitutes an
exception to the presumption of judicial review as contemplated in
the APA. Saavedra Bruno, 197 F.3d at 1160-62. It sweeps broadly,
"appl [ying] even where it is alleged that the consular officer
failed to follow regulations, where the applicant challenges the
validity of the regulations on which the decision was based, or
where the decision is alleged to have been based on a factual or
legal error." Van Ravenswaay, 613 F. Supp. 2d at 4 (quoting Chun
v. Powell, 223 F. Supp. 2d 204, 206 (D.D.C. 2002)); see also
-45-
. ····; ..
Gov't's Mot. at 25-26 (collecting cases showing the breadth of
unlawful actions by consular officers that are nevertheless
unreviewable by the district courts) .
"[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." Malyutin v. Rice, 677 F. Supp. 2d
43, 46 (D.D.C. 2009), summarily aff'd No. 10-5015, 2010 WL 2710451(D.C. Cir. July 6, 2010), cert. denied 131 S. Ct. 949 (2011).
However, as Plaintiffs point out, the doctrine of consular
nonreviewability is not triggered until a consular officer has
made a decision with respect to a particular visa application.
Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997); see also
Maramjaya v. U.S. Citizenship & Immigration Servs., No. CIV.A. 06-
2158 RCL, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008) (doctrine
of consular nonreviewability did not apply when "case ha[d] not
procedurally progressed to the point where consular immunity would
bar judicial review" because plaintiff did not "challenge the visa
decision of any consular official" and instead challenged agency
actions antecedent to such a decision) . 19
19In per curium affirmances that rely on Saavedra Bruno's statement
of the doctrine of consular nonreviewability, our Court of Appeals
has consistently relied on the consulate having reached a coricrete
decision on the application at issue. See e.g., Malyutin v. Rice,
No. 10-5015, 2010 WL 2710451, at *l (D. C. Cir. July 6, 2010)
-46-
... ' ;··
•.
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. Saavedra Bruno, 197 F.3d at 1159 ("it is . . . not
within the province of any court, unless expressly authorized by
law, to review the determination of the political branch of the
Government to exclude a given alien." (internal quotation marks
and citation omitted)). When the Government simply declines to
provide a decision in the manner provided by Congress, it is not
exercising its prerogative to grant or deny applications but
failing to act at all. Id. at 1161 ("For [] aliens [seeking
admission to the United States] the procedure fixed by Congress is
deemed to be due process of law." (quoting 1961 U.S.C.C.A.N. 2950,
2976)) .
("Al though appellant asserts he is challenging a denial of his
request for access to the state court rather than the denial of
his application for a visa, determining whether appellant is
entitled to damages from appellees would ultimately . require
reviewing the decision to deny appellant a visa. That decision is
clearly unreviewable, however." (emphasis added) ) ; Semiani v.
United States, 575 F.3d 715, 715 (D.C. Cir. 2009) ("The district
court properly dismissed appellant's complaint for lack of subject
matter jurisdiction because 'a consular official's decision to
issue or withhold a visa is not subject to judicial review,' unless
Congress indicates otherwise." (emphasis added)); see also Noble
v. Ricciardonne, 161 F. App'x 22, 22-23 (D.C. Cir. 2005); Antonenko
v. Dep't of State, No. 03-5327, 2004 WL 1080159, at *1 (D.C. Cir.
May 13, 2004). .
-47-
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.
Patel, 134 F.3d at 932. Noting that the Patel plaintiffs "[we]re
challenging the consul's authority to suspend their visa
applications, not challenging a decision within the discretion of
the consul[, the Court held that] jurisdiction exists to consider
whether the consulate has the authority to suspend the visa
applications." Id. (emphasis added) . "Normally a consular
official's discretionary decision to grant or deny a visa petition
is not subject to judicial review. However, when the suit
challenges the authority of the consul to take or fail to take an
action as opposed to a decision taken within the consul's
discretion, jurisdiction exists." Id. at 931-32. 20
20The Government contends that Patel, 134 F.3d 929 is inapplicable
because that case involved consideration of a now-outdated
regulation. Compare 22 C.F.R. § 42.81(a) (1997) ("When a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of INA and the
implementing regulations, the consular officer shall either issue
or refuse the visa."), with 22 C.F.R. § 42.81 (2015) ("When a visa
application has been properly completed and executed before a
consular officer in accordance with the provisions of INA and the
implementing regulations, the consular officer must either issue
or refuse the visa under INA 212 (a) or INA 221 (g) or other
applicable law.") . The Government's argument is simply not
convincing.
-48-
.~·. •.
... ..
.. ····;
District courts outside of the Ninth Circuit have reached the
same conclusion. See Am. Acad. of Religion v. Chertoff, 463 F.
Supp. 2d 400, 421 (S.D.N.Y. 2006) (" [T]he wide latitude given the
Executive to grant or deny a visa application does not
include the authority to refuse to adjudicate a visa
application."); Ceken v. Chertoff, 536 F. Supp. 2d 211, 216 (D.
Conn. 2008) (following Am. Acad. of Religion, 463 F. Supp. 2d at
420-21); see also Raduga USA Corp. v. U.S. Dep't of State, 440 F.
Supp. 2d 1140, 1146 (S.D. Cal. 2005) (following Patel, 134 F.3d at932 and holding the doctrine of consular nonreviewability
inapplicable where "the consular official has not made any decision
in four years to date. That is the crux of this case.") . 21
However, Patel, as the Court reads it, stands for the proposition
that the doctrine of consular nonreviewability does not apply
unless a consular official has actually granted or refused an
application. While revised § 42.81's references to certain
statutory bases for denial may clarify what the Government
considers a refusal, they do not undermine the Patel court's
conclusion that a decision to grant or refuse a visa application
is a pre-requisite to application of the doctrine.
21The Government cites several cases from district courts in other
circuits that indicate that the doctrine of consular
nonreviewability would apply even in the absence of a final
decision. ~, Saleh v. Holder, 84 F. Supp. 3d 135, 139 (E.D.N.Y.
2014 (rejecting plaintiffs' argument "that the doctrine does not
apply to a request that a visa be adjudicated (as opposed to
granted) within a reasonable period of time" because "courts lack
subject matter jurisdiction to review the visa-issuing process").
These cases are unpersuasive given our Court of Appeals'
characterization of the doctrine as applicable to "a consular
official's decision to issue or withhold a visa" rather than the
-49-
...
In short, the doctrine holds only that "there may be no
judicial review of [] decisions to exclude aliens unless Congress
has expressly authorized this[,]" Saavedra Bruno, 197 F.3d at 1162(emphasis added and internal quotation marks omitted), but does
not preclude Plaintiffs from challenging the Government's failure
to decide, Patel, 134 F.3d at 932. Accordingly, because the
applications of Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and
Lima remain in "administrative processing" and, therefore, have
not been finally refused, the doctrine of consular
nonreviewability does not bar their claims. See e.g., Maramjaya,
2008 WL 9398947, at *4; Patel, 134 F.3d at 931-32.
c. Status of Kilo and Mike's applications
Plaintiff Kilo's application has not advanced as far as those
of other Plaintiffs and is not at the "administrative processing"
(13~) 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.
failure to make a decision at all. Saavedra Bruno, 197 F.3d at
1159 (emphasis added) .
-50-
Kilo has not submitted his full SIV application because he
must first obtain COM Approval confirming his "employment and
faithful and valuable service to the United States Government[.]"
APAA § 602(b) (2) (D) (i). Thus, like the other Plaintiffs, without
action by the Government, there is nothing Kilo can do to advance
his application.
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, "shall conduct a risk assessment of the
alien and an independent review of records maintained by the United
States Government or hiring organization or entity to confirm
employment and faithful and valuable service . . . . " Id. (emphasis
added) . Moreover, applicants denied COM Approval have appeal
rights specified in AAPA § 602 (b) (2) (D) (ii).
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].
-51-
.......
SIV applications are sent to the NVC at the second stage of the
SIV approval process, just before the interview stage begins. E.g.,
Pls.' Ex. Rat 3. Thus, Mike's application appears to simply be
pending at an earlier stage in the process than those of the
Plaintiffs stuck in "administrative processing."
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.
3. Judicially Manageable Standards to Enforce a Non-
discretionary Duty
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 by which the Court may measure compliance with that duty.
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
-52-
•. •· .. ._,
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,' id.§ 706(1)." Fort Sill Apache Tribe v.
Nat'l Indian Gaming Comm'n, No. CV 14-958, 2015 WL 2203497, at *4
(D.D.C. May 12, 2015) (citing Mashpee Wampanoag Tribal Council,
Inc. v. Norton, 336 F.3d 1094, 1099-1100 (D.C. Cir. 2003)).
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[.]" Id. Thus, the timeline applies to each of the 14 steps
in the SIV adjudication process identified in the Joint Reports
that are within Defendants' control, including "administrative
processing" and "COM Approval." E.g., Pls.' Ex. 0 at 3.
Simply put, the APA imposes a duty 22 on Defendants to act
within a "reasonable" time on Plaintiffs' applications, and the
22 The regulations on which the Government relies to bolster its
argument that Plaintiffs' applications have been denied support
the conclusion that the Government's duty to decide Plaintiffs'
applications is non-discretionary. See Gov't's Mot. at 11 ("Upon
receipt of a proper visa application, a consular officer
adjudicating the application 'must either issue or refuse the
visa.'" (quoting 22 C.F.R. § 42.81)).
-53-
...
RCIA and AAPA provide manageable standards (an explicit timeline)
by which a Court may assess the Government's compliance. Moreover,
our Court of Appeals has stated that:
[T] he time agencies take to make decisions must be
governed by a rule of reason [and] 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[.]"
Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70,
80 (D.C. Cir. 1984). The RCIA and AAPA provide just such a
"timetable or other indication of speed[.]" Id. 23
Finally, the Government actually acknowledges that its duty
to eventually reach a decision on pending SIV applications is non-
discretionary. Gov't's Mot. at 36 ("[T]he only nondiscretionary
duty Defendants owed was to make a decision on the pending
23 Our Court of Appeals has recommended that courts consider the
following complete list of factors: "(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 court should consider the effect of
expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account
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." Telecommunications Research & Action Ctr., 750 F.2d at
80 (internal quotation marks and citations omitted).
-54-
applications of Plaintiffs . to issue or refuse their visas,
which they did.").
Nevertheless, the Government contends that the pace at which
it adjudicates SIV applications is entirely discretionary, citing
Beshir v. Holder, 10 F. Supp. 3d 165 (D.D.C. 2014) for support.
Admittedly, Beshir takes an expansive view of the
Government's power to decide certain immigration applications on
its own timeline. Beshir, 10 F. Supp. 3d at 174 (holding that "the
pace of adjudication is discretionary"). However, the Beshir court
based its conclusion on factors which are not present in this case.
First, the Beshir court relied on " [t] he absence of a
congressionally-imposed deadline or timeframe to complete the
adjudication of [immigrant] adjustment [of status] applications
[as] support[] [for] the conclusion that the pace of adjudication
is discretionary and thus not reviewable [.]" Id. at 176. In the
case at bar, Congress has provided a clear nine-month timeline for
the adjudication of SIV applications.
Second Beshir relied on relevant statutory language
permitting the Government to consider certain applications "in the
Secretary [of Homeland Security] or the Attorney General's
discretion and under such regulations as the Secretary or Attorney
General may prescribe." Id. at 173 (quoting 8 U.S.C. § 1159(b)).
The Government points to no similarly explicit grants of discretion
-55-
applicable to Plaintiffs' applications. Thus, the Beshir Court's
reasoning is wholly inapplicable. 24
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. See RCIA § 1242 (c) (2)
("Nothing in this section [which includes the nine-month timeline
quoted above] shall be construed to limit the ability of [the]
Secretary [of State and the 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."); see also AAPA § 602(4)(B) (same).
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
24 The Government points to Orlov v. Howard in support of its
argument that the speed of application adjudication is
discretionary, but that case also relies on the absence of a
Congressionally-prescribed timeline, and therefore is also
inapplicable. Orlov v. Howard, 523 F. Supp. 2d 30, 35 (D.D.C. 2007)
("In the absence of statutorily prescribed time limitations or
statutory factors to guide users in crafting regulations for the
adjustment process, it is difficult to determine how the pace of
processing an application could be anything other than
discretionary.").
-56-
.• .. "'
...
-
. ,~·.
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 tases" indicate a distinction between the ru~-of-the-
mill case, which must be adjudicated within nine months, and a
subset of cases presenting "national security concerns" that do
not arise in the typical application. RCIA § 1242 (c); AAPA §
602(b) (4). The Government's reading would allow the national
security exception to swallow the nine-month rule in its entirety.
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
-57-
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 stated that national security
concerns are present in this case, e.g., Gov't's Reply ("Nor does
anything in [a particular case that Plaintiffs cite] address the
direct question of national security interests, and terrorism-
related considerations, that are unmistakably present in this
case."), but the Government has never specified in any way what
those concerns are.
The Government has suggested that because the applications of
Charlie and Golf, named as Plaintiffs in the i.nitial 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 only to SIV
-58-
~.: .. ...
applications by Iraqis, and the AA.PA, likewise, applies only to
applications by Afghans. If Iraqi or Afghan citizenship were enough
to render an application "high-risk," the nine-month timeline
would, again, be rendered a dead letter.
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.
4. The APA and the Mandamus Act
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.'" Norton v. S. Utah Wilderness All.,
542 U.S. 55, 64 (2004) (quoting Attorney General's Manual on the
Administrative Procedure Act 108 (1947)).
Mandamus is "a drastic and extraordinary remedy reserved for
really extraordinary causes." Cheney v. U.S. Dist. Court for D.C.,
5 4 2 U. S . 367 , 380 ( 2 0 O4 ) . The Mandamus Act , 2 8 U. S . C . § 13 61 ,
-59-
...
provides district courts with 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." Id. Courts may provide relief under the Act only when
the plaintiff shows: (1) the defendant has a clear duty to act;
(2) the plaintiff has a clear right to the relief he is seeking;
and (3) the plaintiff has no other adequate remedy available. See
Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).
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. See
Gov't's Mot. at 27-36. The Government raised all these concerns in
the context of its jurisdictional arguments, and in the sections
above, the Court explains why none of them have merit: Plaintiffs'
SIV applications await further action by the Government and have
not been finally refused, see supra sections III.B.2.a. & c.; the
doctrine of consular nonreviewability is inapplicable to
Plaintiffs' claims, see supra section III.B.2.b.; and the duty to
adjudicate Plaintiffs' applications within a reasonably period, as
-60-
informed by the nine-month timelines in the RCIA and AAPA is non-
discretionary, see supra section III.B.3.
The Government also contends that Plaintiffs' claims must
fail because any delays in processing their applications are "based
on their own failures to sub~it 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 Deel.). This factual
assertion directly conflicts with facts pled in Plaintiffs'
Amended Complaint. See e.g. id. ~ 7 ("Following the grant of COM
Approval, each of the COM-Approved Plaintiffs duly completed all
other steps required of them by the SIV application process.") .
The Court cannot consider the Government's conflicting factual
assertion in a motion to dismiss for failure to state a claim.
Aktieselskabet, 525 F. 3d at 17 (a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success[, and] . must assume all the allegations
in the complaint are true (even if doubtful in fact)").
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.
'
c. Counts 1 & 2: Failure to Protect
RCIA § 1244(e) provides that "[t]he Secretary of State, in
consultation with the heads of other relevant Federal agencies,
-61-
\~ ....
. . .;
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) . 2 s Citing§ 706, Plaintiffs ask the
25 Plaintiffs' Amended Complaint also cites the APA' s grant of
judicial authority "[to] hold unlawful and set aside agency action,
findings, and conclusions found to be . . . without observance of
procedure required by law." Amended Compl. ~~ 209, 216 (quoting
5 U.S.C. § 706(2)). However, Plaintiffs' Opposition relies only on
§ 706(1) to rebut the Government's arguments in favor of dismissing
Counts 1 and 2.
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Court to compel Defendants to undertake the duties described in
RCIA § 1244 (e) and AAPA § 602 (b) (6).
The Government contends that this Court is without
jurisdiction to hear Claims 1 and 2. 26 The Court agrees for the
following reasons.
"[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." People for the Ethical
Treatment of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1098
(D.C. Cir. 2015) (emphasis and brackets omitted) (quoting Norton
v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)). Moreover,
the APA expressly precludes judicial review of agency action that
is "committed to agency discretion by law." 5 U.S.C. § 70l(a) (2).
Agency action is committed to agency discretion by law when "the
statute is drawn so that a court would have no meaningful standard
26 The Government also contends -- for the first time in its Reply
brief -- that Plaintiffs lack standing to assert claims under RCIA
§ 1244 (e) and AAPA § 602 (b) (6) because these provisions contemplate
individuals with unadjudicated SIV applications, and Plaintiffs'
applications have been finally refused. Ordinarily, an argument
not raised in an opening brief is forfeited, Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008), but because
Plaintiffs' lack of standing would deprive this Court of
jurisdiction, the Court must consider the question. Fed. R. Civ.
P. 12{h) (3); Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 435 (2011). However, the question is easily answered: As the
Court concludes below, Plaintiffs' applications have not been
finally adjudicated, so the Government's late challenge to
Plaintiffs' standing fails.
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against which to judge the agency's exercise of discretion [.]"
Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011) (quoting
Heckler v. Chaney, 470 U.S. 821, 830 (1984)). If no "judicially
manageable standard" exists by which to judge the agency's action,
meaningful judicial review is unavailable under the APA. Id.The statutory duties that Plaintiffs cite are of the type
described in Sierra Club. Plaintiffs point to no standards by which
the Court could assess whether Defendants have adequately assessed
the dangers that P~aintiffs face.
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. Id. What efforts are
reasonable will depend upon "complex concerns involving security
and diplomacy" far beyond the expertise of the Court but
squarely within that of the Secretary. Legal Assistance for
Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular
Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997) .· In· addition,
Plaintiffs fail to point to any standards by which the Court may
assess whether Plaintiffs are in "imminent danger" or whether the
Secretary has adequately acted "in consultation with the heads of
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. -..:...
other relevant Federal agencies." RCIA § 1245 (e); AAPA
§ 602 (b) (6)
True, the RCIA and AAPA both use the word "shall," which
generally indicates an "affirmative command." See Nat'l Ass'n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007)
("The word 'shall' generally indicates a command that admits of no
discretion on the part of the person instructed to carry out the
directive" (internal citations omitted)). But Congress surrounded
"shall" with a profusion of other words that connote discretion:
The Secretary . . 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.
RCIA § 1245(e) (emphasis added); accord AAPA § 602(b) (6).
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. Id. Plaintiff points to
no standards by which the Court might assess these decisions.
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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 ever consulted with the
heads of other relevant Federal agencies regarding the nature of
the threats faced by Plaintiffs or has ever provided for protection
or removal following such consultations." Pls.' Opp'n at 31 (both
instances of emphasis in original) .
However, even if the Secretary's duty to consult were non-
discretionary, 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." Ctr. for Biological
Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 479 (D.C. Cir.
2009) (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C.
Cir. 1996)). Rather, "a procedural-rights plaintiff must show not
only that the defendant's acts omitted some procedural
requirement, but also that it is substantially probable that the
procedural breach will cause the essential injury to the
plaintiff's own interest." Id. Plaintiffs have not contended that
the Secretary of State's alleged failure to consult led to his
failure to protect or remove them from Iraq or Afghanistan. Indeed,
Plaintiffs could not make such an allegation because, as the Court
notes above, the determinations that follow consultation (e.g.,
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whether and how to protect or remove SIV applicants from their
countries) are themselves discretionary.
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 [.]" Vietnamese Asylum
Seekers, 104 F.3d at 1353. Counts 1 and 2 of Plaintiffs' Amended
Complaint must be dismissed.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to File a
Supplemental Declaration shall be granted, and the Government's
Motion to Dismiss shall be granted with respect to Counts 1 & 2
and denied with respect to Counts 3-6 (except insofar as those
claims relate to Alpha, Bravo, and Delta). Accordingly, Counts 1
& 2 shall be dismissed and Alpha, Bravo, and Delta's claims shall
be dismissed as moot.
January 28, 2016 Gla~s~~,k~
United States District Judge
Copies to: attorneys on record via ECF
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