Almaqrami v. Pompeo

• Decision Date: 13 August 2019
• Docket Number: No. 18-5156,18-5156
• Citation: 933 F.3d 774
• Parties: Hamed Sufyan Othman ALMAQRAMI, et al., Appellants v. Michael R. POMPEO, in His Official Capacity as Secretary of State and John Does, #1-#50, In Their Official Capacity as the Consular Officials Responsible for Issuing Diversity Visas, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

933 F.3d 774

Hamed Sufyan Othman ALMAQRAMI, et al., Appellants

v.Michael R. POMPEO, in His Official Capacity as Secretary of State and John Does, #1-#50, In Their Official Capacity as the Consular Officials Responsible for Issuing Diversity Visas, Appellees

No. 18-5156

United States Court of Appeals, District of Columbia Circuit.

Argued December 14, 2018

Decided August 13, 2019

Benjamin M. Eidelson, Washington, DC, argued the cause for appellants. With him on the briefs were Matthew E. Price, Max J. Minzner, Washington, DC, Yolanda Rondon, Arthur B. Spitzer, and Scott Michelman, Washington, DC.

Scott G. Stewart, Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Gisela A. Westwater and Erez Reuveni, Assistant Directors, and Joshua S. Press, Trial Attorney.

Before: Tatel and Griffith, Circuit Judges, and Williams, Senior Circuit Judge.

Griffith, Circuit Judge:

Plaintiffs were offered the chance to apply for a select number of "diversity visas." The government never granted them visas, and the statutory deadline to do so has now passed. But this case is not moot because whether the district court retains the authority to award plaintiffs relief is a merits question. We reverse the district court’s decision to the contrary.

I

A

In general, a citizen of a foreign country who wishes to come to the United States must first obtain a U.S. visa, which is placed in the traveler’s passport. A visa does not guarantee entry into the United States; it only confers the right to travel to a port of entry and apply for admission to enter the country. 8 U.S.C. § 1201(h). Failure to satisfy certain requirements in the Immigration and Nationality Act (INA) will render an alien ineligible for a visa and ineligible for entry. For example, an alien cannot receive a visa if she has "a communicable disease of public health significance," and if she contracts such a disease after receiving her visa, she will be denied entry. 8 U.S.C. § 1182(a)(1)(A). Other parts of the INA apply to only visas or entry. The Secretary of State may, for instance, decline to issue a visa to an alien who abused a position of power to expropriate American property, id. § 1182d, and the Attorney General may decide that certain aliens must pay bonds before entering the country, id. § 1183.

Each fiscal year, the State Department grants approximately 50,000 diversity immigrant visas to individuals from countries underrepresented in the immigration process, which allow recipients who are granted admission to enter the country as lawful permanent residents who may live and work here indefinitely. See 8 U.S.C. §§ 1151(e), 1153(c)(1) ; Pls.’ Br. 4 & n.1.¹ The process by which the State Department awards diversity visas is competitive and complicated. An applicant must first apply for and win the diversity visa "lottery." Pls.’ Br. 5; see 8 U.S.C. § 1153(e) ; 22 C.F.R. § 42.33(b) - (c). A lottery winner or "selectee" must submit an application and various documents to be eligible for a visa number—an administrative device used by the State Department to ensure that it does not grant more than 50,000 visas per year. Gov’t Br. 9-10; see 8 U.S.C. § 1202(b) ; 22 C.F.R. §§ 42.33(f) - (g), 42.61 - 67. A selectee is eligible to receive a visa number only during the fiscal year in which he applied and was selected ("selection FY"). 8 U.S.C. § 1153(e)(2) ; 22 C.F.R. § 42.33(f). Visa number in hand, the selectee may schedule a consular interview, and if he meets the criteria to obtain one, the State Department "shall" issue him a diversity visa. 8 U.S.C. § 1153(c), (e)(1) ; 22 C.F.R. §§ 40.6, 42.81(a) ; see 8 U.S.C. § 1202(h). Consulates return unused visa numbers to the State Department at the end of each month so that they may be reassigned, but the State Department stops granting visa numbers altogether once it projects that it will issue all available visas to existing visa number holders. Gov’t Br. 9-10. Because the diversity visa program restarts each fiscal year, consular officers may not issue diversity visas after midnight on September 30 of the selection FY. 8 U.S.C. §§ 1153(c)(1), 1154(a)(1)(I)(ii)(II) ; 22 C.F.R. § 42.33(a)(1), (d) ; see 31 U.S.C. § 1102.

B

In March 2017, President Trump invoked his authority under 8 U.S.C. § 1182(f) to "suspend the entry of all aliens or any class of aliens as ... he may deem to be appropriate" and issued the second iteration of his "travel ban"—an Executive Order that temporarily prohibited nationals of specific countries from entering the United States, subject to exemptions and waivers. Exec. Order No. 13,780 ("EO-2"), Protecting the Nation From Foreign Terrorist Entry Into the United States §§ 2(c), 3(c), 12(e), 82 Fed. Reg. 13,209, 13,213 -15, 13,218 (2017); see Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2437, 201 L.Ed.2d 775 (2018). Several district courts issued preliminary injunctions preventing the government from enforcing EO-2’s entry restriction, which were largely affirmed by the courts of appeals. See Hawaii , 138 S. Ct. at 2437. But in June 2017, the Supreme Court held that EO-2’s entry restriction could take effect while the Court considered the appeals of the preliminary injunctions, except as to foreign nationals with "a credible claim of a bona fide relationship with a person or entity in the United States." Trump v. Int’l Refugee Assistance Project (IRAP I ), ––– U.S. ––––, 137 S. Ct. 2080, 2088, 198 L.Ed.2d 643 (2017) (per curiam).

Two days after the Supreme Court’s ruling, the State Department issued a "Guidance Memo" instructing consular officers reviewing diversity visa applications about how EO-2’s entry ban affected visa eligibility: A consular officer should first determine whether the selectee "is eligible for the [visa], without regard to [EO-2]." J.A. 17. If so, and if he is from a country subject to EO-2, the officer must evaluate whether the selectee qualifies for an exemption or waiver, or can establish a bona fide relationship with the United States. If he cannot, his visa will be refused.

C

Plaintiffs won the 2017 diversity visa lottery but were denied visas pursuant to the Guidance Memo. Consular officers interviewed plaintiffs and, in accordance with the Memo, determined that they would have been eligible for diversity visas but for the issuance of EO-2. However, because plaintiffs were from Iran and Yemen—countries subject to the entry ban—and could not qualify for exemptions or waivers or satisfy IRAP I ’s bona fide relationship requirement, the consular officers determined that plaintiffs were "not exempt from [EO-2’s] suspension of entry" and denied them visas. See J.A. 17.

Plaintiffs filed suit in the U.S. District Court for the District of Columbia in August 2017. The amended complaint alleges that the Guidance Memo directed consular officers to make visa determinations on the basis of nationality in violation of 8 U.S.C. § 1152(a)(1)(A). It further alleges that § 1182(f) only authorized the President to restrict entry , so by relying on EO-2 to deny plaintiffs visas , consular officers violated their duty under the INA to issue visas to all statutorily eligible applicants. Among other relief, plaintiffs asked the district court to "enjoin[ ] the State Department from implementing the policy set forth in [the Guidance Memo]" and order "consular officers to process [p]laintiffs’ applications pursuant to the [INA]." P.K. v. Tillerson , 302 F. Supp. 3d 1, 6 (D.D.C. 2017).

The next month, the State Department informed the district court that it was on track to issue all 50,000 visas allocated for FY 2017 prior to October 1 and would no longer process additional requests for visa numbers made during FY 2017. The government argued that this development "counsel[ed] against" an order that it give plaintiffs visa numbers or process their applications. J.A. 33-34. Plaintiffs presented the district court with several options. From past practice, it appeared that the State Department would not reallocate visa numbers returned in September. Instead of "wast[ing]" those numbers, plaintiffs suggested that the court could order the government to reassign them to plaintiffs. J.A. 46. Recognizing that the district court might have reservations about issuing such a ruling while the Supreme Court was reviewing the orders enjoining EO-2’s entry restriction as unlawful, plaintiffs explained that the district court could instead "maintain the status quo" by ordering the State Department to "reserve any unused visa numbers until" IRAP I was "resolved." Id.

On September 24, 2017, EO-2 expired and was replaced by the third iteration of President Trump’s travel ban, the "Proclamation." Proclamation No. 9,645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats , 82 Fed. Reg. 45,161 (2017) ; see P.K. , 302 F. Supp. 3d at 3-4. Although the Proclamation modified the scope and duration of EO-2’s entry restrictions, the restrictions on Iranians and Yemenis remained largely the same.

Five days later, on September 29—one day before the end of FY 2017—the district court issued its first ruling. Plaintiffs had argued that the litigation over EO-2’s entry restrictions was "irrelevant" to their case about visas , J.A. 46, but the district court concluded otherwise. Relying on language equating visas and entry in the courts of appeals decisions affirming the injunctions of EO-2 and the nature of the relief sought in those cases, the district court determined that the Supreme Court’s order staying challenges to EO-2’s entry ban also necessarily stayed challenges to EO-2’s effect on visas . P.K. , 302 F. Supp. 3d at 7-8 & n.7. But in the midst of the uncertainty about the strength and status of the legal challenges before the Supreme Court, and with only one day before the end of plaintiffs’ selection FY, the district court sought to preserve the status quo and thus keep alive the possibility that plaintif...