Gomez v. Biden

• Decision Date: 17 August 2021
• Docket Number: 20-cv-02128 (APM),20-cv-01856 (APM),20-cv-01419 (APM),20-cv-01926 (APM),20-cv-02639 (APM)
• Parties: DOMINGO ARREGUIN GOMEZ et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants. MOHAMMED ABDULAZIZ ABDUL MOHAMMED et al., Plaintiffs, v. ANTONY BLINKEN et al., Defendants. AFSIN AKER et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants. CLAUDINE NGUM FONJONG et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants. MORAA ASNATH KENNEDY et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

DOMINGO ARREGUIN GOMEZ et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants.

MOHAMMED ABDULAZIZ ABDUL MOHAMMED et al., Plaintiffs, v. ANTONY BLINKEN et al., Defendants.

AFSIN AKER et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants.

CLAUDINE NGUM FONJONG et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants.

MORAA ASNATH KENNEDY et al., Plaintiffs, v. JOSEPH R. BIDEN, JR. et al., Defendants.

Nos. 20-cv-01419 (APM), 20-cv-01856 (APM), 20-cv-01926 (APM), 20-cv-02128 (APM), 20-cv-02639 (APM)

United States District Court, District of Columbia

August 17, 2021

MEMORANDUM OPINION

AMIT P. MEHTA UNITED STATES DISTRICT COURT JUDGE.

I. INTRODUCTION

This case concerns the State Department's processing and issuance of visas for certain classes of foreign nationals during the COVID-19 pandemic, particularly selectees of the diversity visa lottery during the fiscal year that ended September 30, 2020. On March 20, 2020, the State Department temporarily suspended routine visa services at consular offices and embassies worldwide due to the pandemic, allowing only “emergency and mission critical visa services.” President Trump thereafter issued Presidential Proclamations that suspended the entry of various immigrant and nonimmigrant classifications into the United States unless the foreign national qualified for an exception to the Proclamations. The State Department interpreted these Proclamations to suspend not just entry but also the adjudication of visas for foreign nationals who were subject to the Proclamations and did not qualify for any of the exceptions.

In the summer of 2020, Plaintiffs in these five consolidated cases challenged the Presidential Proclamations and the State Department's refusal to adjudicate visas, which the court termed the “No-Visa Policy.” On September 4 2020, this court granted in part Plaintiffs' motion for a preliminary injunction after finding that Plaintiffs were likely to succeed on their claims that (1) Defendants' “No-Visa Policy, ” as applied to 2020 diversity visa (“DV-2020”) selectees, was not in accordance with law, was in excess of statutory authority, and was arbitrary and capricious; (2) Defendants had unreasonably delayed processing DV-2020 Plaintiffs' applications; and (3) Defendants' COVID-19 guidance arbitrarily excluded DV-2020 applicants from eligibility for mission-critical and emergency services. Gomez v. Trump (Gomez I), 485 F.Supp.3d 145, 158 (D.D.C. 2020). The court ordered, among other things, (1) that Defendants halt the No-Visa Policy as it applied to DV-2020 selectees and their derivative beneficiaries, and (2) that they undertake good-faith efforts to expeditiously process and adjudicate DV-2020 and derivative beneficiary applications and issue or reissue diversity visa and derivative beneficiary visas to eligible applicants by the September 30, 2020 statutory deadline. Id. at 205. The court denied injunctive relief as it pertained to non-DV Plaintiffs because, without a hard deadline for visa issuance or an immediate prospect of entering the country, those Plaintiffs had not shown that a preliminary injunction was warranted on their Administrative Procedure Act (“APA”) claims. Id. The court also found that Plaintiffs were not likely to succeed on their challenges to the related Presidential Proclamations. Id. at 204.

Despite the order of preliminary relief, approximately 40, 000 of the 55, 000 allotted diversity visas made available by Congress for Fiscal Year 2020 remained unissued by the September 30, 2020 deadline. So, the court issued supplemental equitable relief. Gomez v. Trump (Gomez II), 490 F.Supp.3d 276 (D.D.C. 2020). The Immigration and Nationality Act (“INA”) provides that diversity visa selectees “shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.” 8 U.S.C. § 1154(a)(1)(I)(ii)(II). Because at the time of the court's September 30 Order the fiscal year had not yet expired, and because additional relief was necessary to meet the exigencies of the case, the court concluded that it had the equitable authority to order Defendants to reserve visas for future processing pending final resolution of the merits of this case. Gomez II, 490 F.Supp.3d at 286. Taking into consideration the impact of COVID-19 on the State Department's ability to process visas, the court ordered Defendants to reserve 9, 095 diversity visa numbers after the fiscal year deadline, pending final adjudication of this matter. Id. at 290. The court also certified a class of “[i]ndividuals who have been selected to receive an immigrant visa through the U.S. Department of State's FY2020 Diversity Visa Lottery and who had not received their immigrant visa on or before April 23, 2020.” Id. at 294.

The parties now move for partial summary judgment on Plaintiffs' APA, mandamus, and related claims.^[1] Plaintiffs seek, among other things, a final order that Defendants issue the 9, 095 reserved diversity visas to DV-2020 selectees, and they ask the court to order the processing of even more diversity visas. For the reasons that follow, the court grants in part and denies in part Plaintiffs' motion for summary judgment and grants in part and denies in part Defendants' motion for summary judgment. The court will enter judgment in favor of Plaintiffs on some of their APA claims and will order the State Department to adjudicate the reserved 9, 095 DV-2020 visas, but no more.

II. BACKGROUND

The factual history and procedural history of this case are well documented in the court's prior opinions. See Gomez I, 485 F.Supp.3d at 145; Gomez II, 490 F.Supp.3d at 276. The court therefore recounts below only the events that have transpired since Gomez II.

A. Recent Developments

On February 9, 2021, the visas that many Plaintiffs in this case were issued pursuant to Gomez I were approaching their six-month expiration. The D.C. Circuit, which at the time was considering Plaintiffs' appeal of Gomez I, ordered this court to “determine whether plaintiffs [were] eligible for interim relief.” Order of U.S. Court of Appeals, ECF No. 200. The court expeditiously took up that question, and on February 19, while the court's decision was pending, the State Department announced that it would issue national interest exceptions to the Presidential Proclamations to all individuals with valid DV-2020 visas that had expired or were set to expire between February 17, and February 28, 2021. See Defs.' Notice on Recent Actions Taken by the State Department, ECF No. 208. That same day, the court granted in part Plaintiffs' request for interim relief. The court ordered Defendants to “treat all visas issued or renewed pursuant to Gomez I as having been issued in the first instance as of the date the Proclamations are no longer effective.” Mem. Op. & Order, ECF No. 209, at 9. The Order did “not apply to DV-2020 Plaintiffs whose visas . . . were set to expire between February 17, and February 28, 2021, ” because those Plaintiffs lacked standing to seek interim relief after the State Department granted them a national interest exception. Id.

Less than a week later, President Biden issued Presidential Proclamation 10149, which revoked Proclamation 10014 and section one of Proclamations 10052 and 10131-the entry-restriction Proclamations issued by his predecessor that are challenged in this action. Proclamation No. 10149, 86 Fed. Reg. 11, 847, 11, 847, § 1 (Feb. 24, 2021). Following the rescission, the State Department granted DV-2020 visa holders a national interest exception “to the geographic COVID-19 Presidential Proclamations, ” which were still in effect. See U.S. Dep't of State, Bureau of Consular Affs., Rescission of Presidential Proclamation 10014, https://travel.state.gov/content/ travel/en/News/visas-news/rescission-of-presidential-proclamation-10014.html (last updated Feb. 24, 2021). These geographic Proclamations, issued to combat the spread of COVID-19, prohibited persons who were physically present in certain parts of the world from entering the United States. By granting the national interest exception to DV-2020 visa holders, the Biden Administration removed the final barrier to their entry.

B. Procedural Background

This matter involves five fully consolidated cases: Gomez v. Biden, No. 20-cv-1419 (D.D.C.); Mohammed v. Blinken, No. 20-cv-1856 (D.D.C.); Fonjong v. Blinken, No. 20-cv-2128 (D.D.C.); Aker v. Biden, No. 20-cv-1926 (D.D.C.); and Kennedy v. Biden, No. 20-cv-2639 (D.D.C.). See Minute Order, Aug. 7, 2020 (consolidating Gomez, Aker, Fonjong, and Mohammed); Minute Order, Kennedy, No. 20-cv-2639 (D.D.C. Oct. 9, 2020) (consolidating Kennedy with Gomez-led cases).

1. Gomez v. Biden, No. 20-cv-1419

The Gomez Plaintiffs seek partial summary judgment on behalf of Plaintiffs across three visa categories: diversity immigrant visas, family-based immigrant visas, and nonimmigrant visas, including H-1B nonimmigrant visas and J nonimmigrant visas. See Gomez Pls.' Cross-Mot For Partial Summ. J., ECF No. 195 [hereinafter Gomez Pls.' Mot.], Gomez Pls.' Mem. in Opp'n to Defs.' Mot. for Partial Summ. J. & in Supp. of Pls.' Cross-Mot. for Partial Summ. J., ECF No. 195-1 [hereinafter Gomez Pls.' Mem.], at 6-8. Named Plaintiffs are eight family-based immigrant sponsors, consisting of citizens and lawful permanent residents who are petitioning on behalf of foreign family members; six DV-2020 selectees; and three employers or organizations sponsoring individuals for various nonimmigrant visas. See Id. Defendants are President Joseph R. Biden, Jr., Attorney General Merrick Garland, the Department of State, Secretary of State Antony J. Blinken, the Department of Homeland Security, and Secretary of Homeland Security Alejandro...