Gomez v. Trump

Decision Date04 September 2020
Docket Number Case No. 20-cv-01926 (APM), Case No. 20-cv-01856 (APM),Case No. 20-cv-01419 (APM), Case No. 20-cv-02128 (APM), Case No. 20-cv-1907 (APM)
Citation485 F.Supp.3d 145
Parties Domingo Arreguin GOMEZ, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. Mohammed Abdulaziz Abdul Mohammed, et al., Plaintiffs, v. Michael R. Pompeo, et al., Defendants. Afsin Aker, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Claudine Ngum Fonjong, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Chandan Panda, et al., Plaintiffs, v. Chad F. Wolf, et al., Defendants.
CourtU.S. District Court — District of Columbia

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, Matthew David Ingber, Pro Hac Vice, Mayer Brown LLP, New York, NY, Esther H. Sung, Pro Hac Vice, Karen C. Tumlin, Pro Hac Vice, Justice Action Center, Los Angeles, CA, Jordan Elizabeth Cunnings, Pro Hac Vice, Nadia H. Dahab, Pro Hac Vice, Stephen Manning, Pro Hac Vice, Tess Hellgren, Pro Hac Vice, Innovation Law Lab, Portland, OR, Laboni Hoq, Pro Hac Vice, Law Office of Laboni A. Hoq, South Pasadena, CA, Jesse Matthew Bless, American Immigration Lawyers Association, Andrew John Pincus, Mayer Brown LLP, Washington, DC, Cleland B. Welton, II, Pro Hac Vice, Mayer Brown, for Plaintiffs Domingo Arreguin Gomez, Mirna S., Vicenta S.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Jordan Elizabeth Cunnings, Pro Hac Vice, Nadia H. Dahab, Innovation Law Lab, Portland, OR, Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Plaintiffs 3Q Digital, Carmen Ligia Vidal Pimentel, Iwundu Epouse Kouadio Golden, Farangis Kurbonova, Asse International, Inc., Claudio Alejandro Sarni Jimenez, Superior Scape, Inc., Nazif Alam, Shipco Transport, Inc., Nancy Abarca, Angela Sinon, Powertrunk, Inc., M.S., Euraupair International, Inc., Daniel Chibundu Nwankwo, Jodi Lynn Karpes, Fatma Bushati, Aya Nakamura, Juan Carlos Rosario Lebron, Loida Phelps, Seiu Committee of Interns And Residents, Shyam Sundar Koirala, Aja Tamamu Mariama Kinteh.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Rafael N. Urena, The Law Office of Rafael Urena, Los Angeles, CA, for Plaintiffs Claudine Ngum Fonjong, Mohammed Abdulaziz Abdul Mohammed, Itidal Mohammedsalih T. Mahjoub, A Minor, Yurii Ishchenko, E.I., Pawel Mieczkowski, Farid Kurbanov, Graeme John Ward, Dmitrii Pavlovich Velikii.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, for Plaintiffs Festus Suh Neba, M.S., M.A., Cathy Bofumbo Elou, Elie Varangba Gia, George Samir Messiha Dawood, Youstina Samir Baghdady Azer, K.G.S.M., Alexey Nicolaevich Litvinov, Natalia Victorovna Litvinova, Elena Kirillovna Stavrakova.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, Jeff Joseph, Joseph & Hall, P.C., Aurora, CO, for Plaintiff Afsin Aker Kuck Baxter Immigration LLC 365 Northridge Rd., Suite 300 Atlanta, GA 30350 United States 4049498154.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Jeff Joseph, Joseph & Hall, P.C., Aurora, CO, for Plaintiff Afsin Aker.

Charles Herman Kuck, Kuck Immigration Partners LLC, Atlanta, GA, for Plaintiffs Mustafa Dogan Eker, Dilara Ayaydin, Emre Tarman, Erdal Tarman, Mustafa Madazli, Utkirbek Abdumominov, Danat Shekhe, Marina Karpova, Viktoriia Shekhe.

Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, Geoffrey Forney, Wasden Banias LLC, Philadelphia, PA, for Plaintiffs Chandan Panda, Lokesh Ghanta, Sruthi Kasam, Karan Murgai, Lokesh Ramamurthy, Renukadevi Ravichandran, Mounika Damarla, Aman Wadhwa.

Christopher Thomas Lyerla, Glenn M. Girdharry, James Wen, Thomas Benton York, U.S. Department of Justice, William Chang, Robert Aaron Caplen, United States Attorney's Office, Washington, DC, for Defendants Donald J. Trump, Michael Pompeo.

Christopher Thomas Lyerla, Glenn M. Girdharry, James Wen, Thomas Benton York, U.S. Department of Justice, William Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants William Barr, United States Department of State, United States Department of Homeland Security, Chad F. Wolf.

Abadir Jama Barre, Pro Hac Vice, Barre Law LLC, New York, NY, Curtis Lee Morrison, Law Office of Curtis Morrison, Huntington Beach, CA, Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, Rafael N. Urena, The Law Office of Rafael Urena, Los Angeles, CA, for Defendant A Minor.

MEMORANDUM OPINION AND ORDER

AMIT P. MEHTA, United States District Judge These five consolidated cases concern recent actions taken by the President and the State Department to restrict the issuance of visas and entry of certain classes of foreign nationals into the United States due to the COVID-19 pandemic. 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." Then, on April 20, 2020, the President issued Presidential Proclamation 10014, which suspended the entry of all immigrants into the United States for two months unless they qualified for an exception to the Proclamation. That Proclamation was followed two months later by Presidential Proclamation 10052, which extended the entry suspension for immigrants until December 31, 2020, and also suspended the entry of foreign nationals seeking admission on temporary nonimmigrant visas, with limited exceptions.

The State Department has interpreted Proclamations 10014 and 10052 to suspend not just entry, but also the review and adjudication of visas for applicants who are covered by the Proclamations and not subject to any of their exceptions. Consequently, at posts that have not resumed routine operations, visa processing and issuance have been suspended unless the applicant is both (1) eligible for an exception to the Proclamation and (2) considered "mission critical." Though these are distinct requirements, the exceptions to the Proclamations appear to heavily inform the types of applications considered to be mission critical. The State Department has begun a phased reopening since July 15, 2020, but even at posts that have resumed routine operations, the processing and issuance of covered, non-exempt visas remains suspended pursuant to the Department's interpretation of the Proclamations.

Plaintiffs in these five consolidated actions are approximately 1,076 visa applicants, visa sponsors, and their derivative beneficiaries who represent various immigrant and nonimmigrant visa categories that are subject to the Proclamations’ suspension of entry. Plaintiffs have all filed motions for preliminary injunctions and temporary restraining orders, seeking to preliminarily enjoin Defendants from implementing or enforcing the Proclamations, and two of the actions seek to certify six putative subclasses. Plaintiffs all challenge the validity of the Proclamations on various statutory and constitutional grounds, and they assert that the State Department's suspension of the processing and issuance of non-exempt visas pursuant to the Proclamations violates the Administrative Procedure Act.

In addition, a subset of Plaintiffs ("DV-2020 Plaintiffs") raise several challenges that are specific to one category of immigrant visas—diversity visas. The DV-2020 Plaintiffs’ opportunity to receive diversity visas and immigrate to the United States will permanently expire on September 30, 2020, unless Defendants process and issue their visas by then. Diversity visa applications are not currently being adjudicated, however, because they are, in general, ineligible for an exception to the Proclamation and not considered mission critical. These Plaintiffs assert that the processing and adjudication of their visas has been unreasonably delayed, and that the State Department's exclusion of this category from its guidance regarding mission critical services is arbitrary.

For the reasons discussed below, the court grants in part and denies in part Plaintiffsmotions for preliminary relief. Specifically, the court rejects Plaintiffs’ statutory and constitutional challenges to the Proclamations, but holds that Plaintiffs are substantially likely to succeed on their claims that (1) the State Department's policy of not reviewing and adjudicating non-exempt visas is not in accordance with law, is in excess of statutory authority, and is arbitrary and capricious; (2) the State Department's non-processing of 2020 diversity visa applications constitutes agency action unreasonably delayed; and (3) the State Department's exclusion of 2020 diversity visa applications from its guidance on mission critical services is arbitrary and capricious. The court further concludes that the DV-2020 Plaintiffs have met the additional requirements for preliminary injunctive relief pursuant to the court's equitable authority and 5 U.S.C. § 705, but the Non-DV Plaintiffs in Gomez have not. In light of the foregoing, the court denies without prejudice the pending class certification motions as they pertain to the putative diversity visa classes, and defers ruling on the Gomez Plaintiffsmotion for class certification as it pertains to the other four putative subclasses of Non-DV Plaintiffs.

I. BACKGROUND
A. Relevant Visa Categories

Broadly speaking, a foreign national wishing to enter the United States must first obtain a visa from the State Department. A visa is a travel document that allows its holder to travel to a port of entry and request permission to enter the United States, but it does not guarantee the right to enter the country. See Almaqrami v. Pompeo , 933 F.3d 774, 776 (D.C. Cir. 2019) ; Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2414, 201 L.Ed.2d 775 (2018) (explaining the "basic distinction" between visa issuance and entry "that runs...

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